| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 497/05 |
| Determination date | 22 December 2005 |
| Member | R Arthur |
| Representation | L Turner ; P Davey |
| Location | Auckland |
| Parties | Hormann v Virtual Warehouse Ltd |
| Summary | PRACTICE AND PROCEDURE - Application by respondent to remove matter to Employment Court - Respondent alleged important questions of law likely to arise - Applicant's substantive application raised issues with her return to work after parental leave, and claim for unpaid salary of $183,404 - $106,442 of outstanding salary and $11,596 of holiday pay had been written off respondent's books as part of arrangements which included applicant taking shares in respondent - Applicant as financial controller did paperwork in writing off salary owed but alleged she did not agree that salary was lost forever - Respondent alleged first important question of law was whether journal entries writing off unpaid salary were deductions" under Wages Protection Act 1983 - Alleged second question was whether to write off unpaid salary was a matter "related to an employment agreement" so as to give Authority jurisdiction to make order granting relief to respondent under Illegal Contracts Act 1970 - First question was clearly question of law - However Authority not satisfied issue arose in this case when issue at heart of matter was what arrangement was made, if any, about terms on which salary was to be written off - Question of law would not be decisive or strongly influential in deciding material part of case - Second question was question of fact not law - Terms of contract were question of fact where intention of parties had to be gathered partly from documents but also from oral exchanges and conduct - Questions of law proposed by respondent did not meet statutory requirements for removal - Removal declined" |
| Result | Application dismissed ; No order for costs |
| Statutes | ERA s162;ERA s178;ERA s178(2)(a);Illegal Contracts Act 1970 s7;Wages Protection Act 1983 s5(1) |
| Cases Cited | Andrew v Commissioner of Police unreported, Colgan J, 31 July 2003, CC 21A/03;Auckland District Health Board v X [2005] 1 ERNZ 551;Carmichael v National Power Plc [1999] 1 WLR 2042 ; [1999] 4 All ER 897 ; [1999] ICR 1226;Commissioner of Inland Revenue v Walker [1963] NZLR 339;Hanlon v International Educational Foundation (NZ) Inc [1995] 1 ERNZ 1;McAlister v Air New Zealand Ltd unreported, Shaw J, 11 May 2005, AC 22/05 |
| Number of Pages | 9 |
| PDF File Link: | aa 497_05.pdf [pdf 56 KB] |