| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2016] NZERA Wellington 129 |
| Hearing date | 12-Oct-16 |
| Determination date | 18 October 2016 |
| Member | T MacKinnon |
| Representation | R Jamieson ; D Sharma (in person) |
| Location | Wellington |
| Parties | Pure New Zealand Foods Ltd v Sharma |
| Summary | PENALTY – BREACH OF CONTRACT – GOOD FAITH - Applicant sought penalty for respondent’s failure to work out notice and for leaving employment without informing applicant of intentions – COSTS – Applicant sought contribution towards costs – Chef |
| Abstract | AUTHORITY FOUND –PENALTY – BREACH OF CONTRACT – GOOD FAITH: Would stretch good faith obligations too far to require respondent to inform applicant he was looking for other work opportunities. Respondent’s use of sick leave to arrange transfer of work visa breach of good faith. Penalty not warranted as breach not sustained or intended to undermine employment relationship. Applicant breached employment agreement by failing to give or work out required notice. Applicant inconvenienced by respondent’s early departure, although no financial evidence provided. Dubious whether respondent had genuine opportunity to seek legal advice. Punitive and possibly unenforceable clauses in agreement may explain respondent’s reluctance to communicate intention to leave. $750 penalty appropriate.COSTS – Length of investigation meeting not specified. Applicant sought $2,000 indemnity costs. Applicant only partially successfully. Respondent to pay applicant $750 contribution towards costs. |
| Result | Application granted ; Penalty ($750)(payable to crown) ; Costs in favour of applicant ($750) |
| Main Category | Penalty |
| Statutes | ERA s4 – ERA s4(1A)(b) – ERA s4A – ERA s133 – ERA s133A – ERA s133A(e) – ERA s135 |
| Cases Cited | Xu v McIntosh [2004] 2 ERNZ 448 (EmpC) |
| Number of Pages | 11 |
| PDF File Link: | 2016_NZERA_Wellington_129.pdf [pdf 117 KB] |