| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 410 |
| Hearing date | 6 Sep 2013 |
| Determination date | 11 September 2013 |
| Member | A Dumbleton |
| Representation | D Liu ; R Narayan |
| Parties | Wang v Vent Group Ltd |
| Summary | INJUNCTION - Applicant sought interim reinstatement - Applicant employee, director and shareholder of respondent - Whether all terms of new employment agreement (EA") finalised at time applicant suspended without pay - Whether applicant bullied, intimidated or harassed other employees - Whether document proffered by applicant materially and seriously misrepresented matter of fact or was likely to mislead - Franchise agreement - Chief executive officer" |
| Abstract | AUTHORITY FOUND -;INJUNCTION: Arguable some conduct alleged against applicant did not occur and conduct that did occur not sufficiently serious as to justify dismissal. Evidence may lead to finding respondent's investigation not sufficiently thorough to establish true facts. Allegation of predetermination and agenda to get rid of applicant only faintly arguable. Strongly arguable applicant agreed to term of EA allowing unpaid suspension but also arguable applicant should have been consulted before suspension. Arguable case applicant unjustifiably dismissed. Existence of mixed or multiple relationships meant permanent reinstatement unlikely to be practicable or reasonable. Strongly arguable applicant in breach of Fair Trading Act 1986 prohibition against misleading or deceptive behaviour. Arguable full and proper performance of obligations to zero tolerance" level implied term of EA given interrelationship of applicant's roles as employee, franchise guarantor, shareholder and director. No arguable case applicant would be reinstated at conclusion of substantive investigation meeting. Uncertainty as to how applicant would be able to continue as guarantor of franchise agreement obligations, whether franchisor would terminate franchise agreement and whether applicant's shares would be sold compulsorily meant balance of convenience strongly in favour of leaving present situation in place in interim. Damages adequate and more appropriate remedy. Overall justice of case did not favour interim reinstatement. Application for interim reinstatement dismissed." |
| Result | Application dismissed ; Costs reserved |
| Main Category | Injunction |
| Statutes | ERA;ERA s103A;ERA s125;ERA s127;Fair Trading Act 1986 |
| Cases Cited | Attorney-General v NZ Post Primary Teachers Assn [1992] 1 ERNZ 1163 ; [1992] 2 NZLR 209;BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266;Cliff v Air New Zealand Ltd [2005] ERNZ 1 |
| Number of Pages | 10 |
| PDF File Link: | 2013_NZERA_Auckland_410.pdf [pdf 134 KB] |