| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 117/04 |
| Hearing date | 16 Apr 2003 - 11 Jul 2003 (2 days) |
| Determination date | 08 April 2004 |
| Member | A Dumbleton |
| Representation | P Swarbrick ; J Mills |
| Location | Auckland |
| Parties | Dorset v Chemcolour Industries (NZ) Ltd |
| Summary | DISPUTE - Valuation of applicant's units in staff unit fund scheme - Membership ceased on resignation - Valuation at discretion of board with provisos - Interpretation of clause - Respondent correctly understood meaning of relevant clause - Required to act in good faith - Respondent exercised discretion to pay only minimum valuation - Main factor taken into account that applicant did not give undertaking to restrain from dealings with competitors - In relation to that factor board did not act reasonably - Inconsistent with objectives of deed - Discretion also exercised unfairly as no reasonable basis to regard applicant has having breached duty of fidelity by setting up competing company - Respondent not entitled to try to obtain further concession (of undertaking) by purporting to bargain over how would exercise discretion of valuation of units - Valuation of units to be calculated at certain date - Could only take into account influence up to particular date - Undertaking issue occurred after relevant date as did incorporation of company - Should not have been taken into account - Unreasonable actions - Breach of employment agreement - Remedy - Lost chance to have discretion exercised in applicant's favour - Compensatable by damages - Assessment of damages - Unrealistic to expect board to exercise discretion without prejudice - Parties to discuss with view to settlement - Determination to be issued assessing damages and costs |
| Result | Questions answered; Orders accordingly ; Costs reserved |
| Statutes | ERA s157(1);ERA s161(3);ERA s161 |
| Cases Cited | Bates v BP Oil New Zealand Ltd [1996] 1 ERNZ 657;Cullen & Ors v Pension Holdings Ltd unreported, Cooke P, 1 March 1993, CA 304/91;McIntosh v AgResearch - New Zealand Pastoral Agriculture Research Institute Ltd [2002] 2 ERNZ 50;Schilling v Kidd Garrett Ltd [1977] 1 NZLR 243;Wellington Area Health Board v Wellington Hotel etc IUOW [1992] 2 ERNZ 466 |
| Number of Pages | 10 |
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