| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 49A/07 |
| Determination date | 30 March 2007 |
| Member | L Robinson |
| Representation | R Harrison ; S Wilson |
| Location | Auckland |
| Parties | Heath v Auckland City Council |
| Summary | DAMAGES – Respondent sought to enforce undertaking given by applicant when granted interim reinstatement on garden leave – Dismissal found to be justified - Respondent suffered loss in form of four months wages paid to applicant – Authority retained discretion to not enforce undertaking – No clear rule applicants granted interim reinstatement on garden leave must repay monies – Garden leave ordered as applicant’s position already filled – Applicant wished to work but to accommodate respondent not required to do so – Respondent suffered loss as consequence of Authority’s accommodation to it – Inequitable to require applicant to repay salary – COSTS - More than three days of investigation meetings - Respondent sought full costs incurred after Calderbank offers rejected - Alternatively sought costs of $9,000 - Applicant argued pursuit of reinstatement made reliance on Calderbank offers inappropriate - Genuine desire for reinstatement or vindication important non-monetary factor for applicant - Calderbank offers did not meet applicant's expectations of proceedings and he had made this clear to respondent - Applicant's case always particularly about reinstatement and never susceptible to Calderbank offers - Calderbank offers could not found claim for indemnity costs - Also, first offer not left open for sufficient time - Costs not awarded against applicant for successful interim reinstatement - Respondent successful in substantive matter - Authority calculated notional reasonable costs as $8,750 - Authority had regard for relative means of parties - Applicant submitted relied on Department of Labour statistics which indicated costs range - Reasonable contribution $5,000 including disbursements |
| Result | Application dismissed ; Costs in favour of respondent ($5,000)(including disbursements) |
| Main Category | Costs |
| Statutes | District Court Rules 1992 R47G;District Court Rules 1992 R47GA;District Court Rules 1992 R47H;Employment Court Regulations 2000 r68;ERA s127(2);ERA s127(3);ERA Second Schedule;ERA Third Schedule |
| Cases Cited | Binnie v Pacific Health Ltd [2002] 1 ERNZ 438;Burns v Attorney General in Respect of the Chief Executive of the Inland Revenue Department unreported, Goddard CJ, 19 August 2002, CC 16B/02;Calderbank v Calderbank [1975] 3 All ER 333;Cheltenham & Gloucester Building Society v Ricketts [1993] 4 All ER 276 (CA);Counties Manukau Health Ltd (t/a South Auckland Health) v Pack [2000] 1 ERNZ;518;Diver v Geo Boyes & Co unreported, Penlington J, 20 May 1998, CP 58/98;Gratton v Wilder Transport Ltd unreported, Goddard CJ, 27 May 1999, WC 29/99;Health Waikato Ltd v Van der Sluis [1997] 1 ERNZ 236;Keating v New Zealand Bloodstock Ltd unreported, D King, 11 May 2001, AA 33A/01;McDonald v FAI (NZ) General Insurance Co Ltd (2002) 16 PRNZ 298;Ogilvey & Mather (NZ) Ltd v Darroch [1993] 2 ERNZ 943;PBO Ltd (formerly Rush Security Ltd) v Da Cruz [2005] 1 ERNZ 808;Richardson v Board of Governors of Wesley College unreported, Travis J, 19 March 2003, AC 20/03;Taylor v eCOM New Zealand Ltd unreported, D King, 12 December 2005, AA 474/05;Watson v NZ Electrical Traders Ltd unreported, Colgan CJ, 24 November 2006, AC 64/06;Wellington Racing Club Inc v Welch [2002] 1 ERNZ 685 |
| Number of Pages | 12 |
| PDF File Link: | aa 49a_07.pdf [pdf 45 KB] |