| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 57A/07 |
| Hearing date | 17 Sep 2007 |
| Determination date | 18 September 2007 |
| Member | A Dumbleton |
| Location | Wellington |
| Parties | Hertel v GCB Construction Ltd & Ors |
| Other Parties | J Brawley ; G Brawley |
| Summary | PRACTICE AND PROCEDURE – Applicant sought to have question of third applicant’s personal liability determined – Authority reserved question in earlier determination which found first respondent owed applicant bonus – Second and third respondents directors of first respondent - Applicant owed bonus when respondents sold business to third party, which denied liability for bonus payment – Third respondent had given personal undertaking to applicant, but later resiled from it – Although applicant not party to sale and purchase agreement between first respondent and third party, potentially had remedy against them under s4 Contracts (Privity) Act 1982 - However, outside Authority’s jurisdiction – Arguable as hands and minds" of first respondent, directors instigated, aided or abetted breach of employment agreement – However, remedy for breach was penalty and would not allow applicant to recover bonus – Labour Court had ordered compliance against a company director personally, requiring him to use position of control to ensure company liability met but not ordering him to make payment form own pocket – Authority to further investigate grounds for ordering compliance by third respondent – If grounds found to exist Authority would consider making order of its own motion – Third respondent would be required to attend hearing and produce records relating to family trust, first respondent, and another company incorporated by him around time first respondent sold – Parties advised to attend mediation before investigation resumed" |
| Result | Orders accordingly ; No order for costs |
| Main Category | Practice & Procedure |
| Statutes | Contracts (Privity) Act 1982 s4;ERA s134;ERA s137(2) |
| Cases Cited | Hertel v GCB Construction Ltd and Ors unreported, G J Wood, 19 April 2007, WA 57/07;Northern Clerical Workers IUOW v Lawrence Publishing Company of New Zealand Ltd & Ors [1990] 1 NZILR 717 |
| Number of Pages | 6 |
| PDF File Link: | wa 57a_07.pdf [pdf 26 KB] |