| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 192 |
| Hearing date | 8 May 2014 |
| Determination date | 16 May 2014 |
| Member | T G Tetitaha |
| Representation | S Langton ; D Alderslade, V Hodgson |
| Location | Auckland |
| Parties | Bay International Ltd v Hutson and Anor |
| Other Parties | Hutson |
| Summary | DISPUTE - Parties disputed whether specified clauses of respondents' employment agreements (EAs") continued to apply past expiry of fixed term - Whether respondents' employment of indefinite duration - Respondents also directors of applicant - Takeover bid of applicant by respondents - Suspension - Whether applicant could undertake disciplinary process against respondents for conflicts of interest involved in takeover bid" |
| Abstract | AUTHORITY FOUND -;DISPUTE: Respondents continued working after expiry of fixed term. Respondents' status changed from fixed term employees to permanent employees. Clause in respondents' EAs referring to termination of employment 'prior to expiry of fixed term' did not impose time limitation upon operation of clause but only defined period of notice of termination. Purpose of clause to enable other directors of applicant to exercise some control over respondents' employment. Clause intended to prevent deadlock on decisions about respondents' employment at board level and provisions of Companies Act 1993 would not necessarily assist in resolution of employment disputes. Applicant would be unable to terminate respondents' employment at all without clause in EAs and no evidence of mutual intention clause 'fell away' after expiry of fixed term. Applicant entitled to exercise right to terminate respondents' employment under specified clauses in EAs. Questions answered in favour of applicant. |
| Result | Questions answered in favour of applicant ; Costs reserved |
| Main Category | Dispute |
| Statutes | Companies Act 1993;Companies Act 1993 s240;Companies Act 1993 s241 |
| Cases Cited | Assoc of Staff in Tertiary Education Inc: Aste Te Hau Takitini o Aotearoa v Hampton, Chief Executive of the Bay of Plenty Polytechnic [2002] 1 ERNZ 491;Auto-Movements (NZ) Ltd v Eveleigh [2007] ERNZ 370;Electrotech Controls Ltd v Rarere [2007] ERNZ 586;Godfrey Hirst New Zealand Ltd v National Distribution Union unreported, Colgan J, 27 October 2004, AC62/04;Hansells (NZ) Ltd v Ma [2007] ERNZ 637;Mount Joy Farms Ltd v Kiwi South Island Co-operative Dairies Ltd unreported, McGrath, Hammond and Chambers JJ, 6 December 2001, CA297/00;SJD Group Ltd v KJM (Scotland) Ltd [2010] CSOH 13;Terson Industries Ltd v Loder (2009) 6 NZELR 345;Varney v Tasman Regional Sports Trust unreported, Goddard CJ, 23 July 2004, CC15/04;Vector Gas Ltd v Bay of Plenty Energy Ltd [2010] 2 NZLR 444 |
| Number of Pages | 12 |
| PDF File Link: | 2014_NZERA_Auckland_192.pdf [pdf 313 KB] |