| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 314/05 |
| Determination date | 18 August 2005 |
| Member | R A Monaghan |
| Representation | M Young ; R Towner |
| Location | Auckland |
| Parties | Tobin v Stayinfront Inc and Ors |
| Other Parties | Great Elk Company Inc, Stayinfront (Asia Pacific) Ltd formerly The Great Elk Company Ltd, Splashnet Inc |
| Summary | JURISDICTION - Whether binding settlement between parties preventing pursuit of personal grievance - Applicant negotiated exit package with respondents following difficulties created by affair with co-worker - Package included stock purchase agreement and provision that applicant would not pursue any claims against respondents arising out of, or connected with, employment - Separate litigation in overseas jurisdiction based on stock purchase agreement resulted in settlement which stated that it was not to be construed as affecting any rights or claims which by law in New Zealand could not be contracted out of - Effect of s238 Employment Relations Act 2000 - Agreement involving promise by parties to not pursue cause of action otherwise available permissible under s238 - General agreement that cause of action not available as between the parties whether or not any pursuit was in contemplation not permissible under s238 - To hold otherwise would negate any attempts to settle personal grievances - Clear from decided cases that defence of accord and satisfaction available when an applicant sought to proceed with personal grievance - Settlement of stock purchase litigation not capable of amounting to amendment to exit agreement - Exit agreement met basic requirements of offer and acceptance supported by mutual exchange of promises amounting to consideration - Alleged unfairness in negotiation and completion of exit agreement did not amount to legal basis such as duress for ignoring agreement - Unrealistic to affirm stock purchase agreement but deny competence regarding exit agreement when both negotiated at same time - Applicant had extensive negotiating experience at high level - Evidence from psychologist not sufficient to establish state of mind such that agreement should be set aside - Given settlement of stock purchase litigation, doubtful jurisdiction to look at allegation that disparity between value of shares and money received for them showed inequality of stock purchase agreement - Applicant's raising of grievance caught by terms of final and binding exit agreement - Grievance unable to proceed - Executive Vice President of Sales |
| Result | Question answered in favour of respondents ; Costs reserved |
| Statutes | ECA s147;ERA s114;ERA s143;ERA s144(2)(e);ERA s149;ERA s151;ERA s238;ERA Part 9;ERA Part 10 |
| Cases Cited | Cabletalk Astute Network Services Limited v Cunningham [2004] 1 ERNZ 506;Marlow v Yorkshire New Zealand Limited [2000] 1 ERNZ 206;Skinner v Stayinfront (Asia Pacific) Limited unreported, M Urlich, 4 May 2005, AA 161/05 |
| Number of Pages | 7 |
| PDF File Link: | aa 314_05.pdf [pdf 48 KB] |