| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 33/06 |
| Hearing date | 9 Feb 2006 - 10 Feb 2006 (2 days) |
| Determination date | 06 March 2006 |
| Member | P Cheyne |
| Representation | G Allan ; N Ironside |
| Location | Christchurch |
| Parties | Kahala Holdings Ltd v Taylor |
| Summary | JURISDICTION - When respondent resigned applicant sought summary judgment to recover $30,000 paid at start of employment - Respondent defended proceedings in part by saying Authority had jurisdiction - Written Heads of Agreement contained terms of payment - Even if not part of employment agreement it was closely related to it and central to formation of relationship - Attempt to recover payment was an action arising from or related to employment relationship and Authority had jurisdiction - DISPUTE - Applicant claimed payment was advance of discretionary bonuses and repayment was to be by way of such bonuses, but none had been awarded - Respondent alleged it was bonus or advance of two years annual bonuses and so nothing was owed - Correspondence supported finding payment was advance that had to be repaid and applicant entitled to order to that effect - Respondent could not rely on a collateral contract containing extra terms or estoppel to resist obligation to repay - Applicant argued word annual" in Heads of Agreement referred to financial year - Ambiguity resolved against drafter of agreement - Annual meant complete 12 month period of employment - RAISING PERSONAL GRIEVANCE - Respondent presented applicant with view that bonus payments should have been applied to reduce advance and proposed mediation - Although "personal grievance" not used enough was said to elicit response and enable applicant to remedy grievance - Unjustified disadvantage claim raised within time - Further investigation meeting required to assess merits - Constructive dismissal claim not raised within time - Respondent argued by participation in mediation applicant impliedly consented to raising grievance out of time - Applicant had not waived consent to allow respondent to establish that mediation was to resolve contended dismissal - In Jacobson Creative Services Ltd v Findlater (cited below) only issue for mediation was grievance submission, distinguished from present situation where mediation driven by attempt to recover advance - Participation in mediation not implied consent - Absence of provisions in employment agreement relating to personal grievances did not contribute to delay - Delay not occasioned by exceptional circumstances - Not able to pursue dismissal claim - Length of service two years four months - Manager" |
| Result | Application granted (Applicant) ; Repayment of advance in favour of applicant ($30,000) ; Application granted in part (Respondent) |
| Statutes | ERA s114(2);ERA s148(1);ERA s148(3);ERA s157(1) |
| Cases Cited | Waikato Rugby Union (Inc) v New Zealand Rugby Football Union (Inc) & Ors [2002] 1 ERNZ 752;Goodall v Marigny (NZ) Ltd [2001] 2 ERNZ 60;Jacobson Creative Services Ltd v Findlater [1994] 1 ERNZ 35;GFW Agri-Products Ltd v Gibson [1995] 2 ERNZ 323 |
| Number of Pages | 6 |
| PDF File Link: | ca 33_06.pdf [pdf 39 KB] |