| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 46/05 |
| Hearing date | 22 Feb 2005 |
| Determination date | 11 April 2005 |
| Member | P Cheyne |
| Representation | TJ Twomey ; B Cottle (in person) |
| Location | Christchurch |
| Parties | Tijsen and Anor v Cottle and Anor |
| Other Parties | Tijsen, Infratech Inc |
| Summary | JURISDICTION – Second respondent (“I”) registered company in Samoa – Not registered under Companies Act 1993 – However, still maintained separate legal personality – I was employer - New Zealand law governed situation – Authority had exclusive jurisdiction - ARREARS OF WAGES – Applicants’ went to work in Guyana on project for 1ï¾½ months – Did not receive wages owing apart from two payments - Allegedly no funds available to pay applicants – Applicants given letter to sign which recorded mutual termination of employment – No mutual termination - Arrears of wages of US$22,391.81 owing by I to first applicant and US$17,913.44 owing to second applicant – Interest 8.5 percent - PENALTY – Penalty of NZ$2,000 against I payable to applicants for breach of employment agreement - UNFAIR BARGAINING – Applicants sought to fix liability against first respondent (“C”) – Section 69 ERA did not allow Authority to order non-party to employment agreement to pay compensation to one party for unfair bargaining by another – Claim dismissed - BREACH OF FAIR TRADING ACT – Claim of misleading conduct by C related to or arose out of employment relationship so Authority had jurisdiction – Misleading conduct by C about I’s financial capacity to meet agreed terms of employment – C to pay first applicant US$6,250 and second applicant US$5,000 for loss caused by not being paid period of notice contractually entitled to (directly linked to C’s breach of Fair Trading Act) – Payment for failure to give notice included in award against I, so to extent C paid damages, award against I to be reduced – C to pay further NZ$2,500 to each of applicants for emotional distress for breach of Fair Trading Act |
| Result | Application granted ; Arrears of wages (US$22,391.81)(AJ) ; (US$17,913.44)(PJ) ; Interest (8.5 percent) ; Penalty (NZ$2,000)(To applicants) ; Damages (US$6,250)(AJ) ; ($5,000)(PJ) (Failure to give notice - to extent damages paid by C, amount owing by I to be reduced); Damages (NZ$2,500)(AJ) ; (NZ$2,500)(PJ)(Emotional distress) ; Costs reserved |
| Statutes | Companies Act 1993 s334;Companies Act 1993 s335;ERA s68;ERA s69;ERA s161(1);ERA s162;ERA s238;Fair Trading Act 1986 s12;Fair Trading Act 1986 s43(20(c);Fair Trading Act s43(2)(d);International Companies Act 1987 |
| Cases Cited | Clifford v Rentokil Ltd (NZ) [1995] 1 ERNZ 407;Lee v Lee's Air Farming Ltd [1961] NZLR 325 (PC);Salmon v Salmon [1987] AC 22 (HL) |
| Number of Pages | 8 |
| PDF File Link: | ca 46_05.pdf [pdf 45 KB] |