| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 100/08 |
| Determination date | 17 July 2008 |
| Member | P Montgomery |
| Representation | O Johnstone ; J Mee |
| Location | Christchurch |
| Parties | Spencer v Hughes Dairy Farms Ltd |
| Summary | JURISDICTION – COMPLIANCE ORDER – Applicant sought compliance with Authority determination, penalties and joinder of respondent’s directors (“W” and “T”) as parties - Applicant successful in personal grievance claim in determination CA 117/05 – Respondent failed to pay remedies ordered – Thirteen months after determination issued, respondent struck off companies register – Although respondent company non-existent, farm continued to operate - Applicant sought to enforce order through District Court – Bailiff discovered no assets belonging to respondent – First issue whether Authority had jurisdiction to order compliance of company which ceased to exist – Respondent argued respondent no longer in existence as company removed from Register – Applicant claimed not in spirit of legislation that W and T permitted to hide behind corporate veil – Applicant cited Labour Court case where compliance ordered against non-parties to original proceedings where non-parties in position to ensure payment made – Respondent argued no evidence company created as fa�ade so not case to lift corporate veil - Authority found discretion to order compliance must be exercised in principled way not arbitrarily – Found Authority must also consider practical benefit of ordering compliance – Found in earlier authorities company in receivership, but here company nonexistent – Authority found unable to order compliance of a company which ceased to exist as no practical benefit in doing so - Second issue whether Authority had jurisdiction to join former directors and senior executives of former company and order them to pay remedies ordered prior to company’s demise – W and T were brothers and directors of respondent company at time of applicant’s dismissal – T later sold shares to W, so W sole shareholder – Authority found case law principles prevented Authority from ordering compliance against directors personally - Found had jurisdiction to join former directors and senior executives of a company, but unable to order them to personally pay remedies ordered by Authority to be paid by separate legal entity – PENALTY - Third issue whether, should Authority find applicant’s employment was breached, Authority had jurisdiction to levy penalties against former directors or senior executives - Authority found unable to consider issue of remedies in particular case as claim time barred – Found Authority had no discretion on time bar issue - Authority noted regretful that of no assistance to applicant |
| Result | Application dismissed ; Costs reserved |
| Main Category | Jurisdiction |
| Statutes | Companies Act 1993 s15;ERA s133;ERA s134;ERA s134(2);ERA s135(2)(a);ERA s135(2)(b);ERA s136 |
| Cases Cited | Auckland Regional Services Trust v Lark [1994] 2 ERNZ 135;New Zealand (with exceptions) Electrical IUOW v Remtron Lighting Limited (in receivership) and Ors [1990] 1 NZILR 608 |
| Number of Pages | 11 |
| PDF File Link: | ca 100_08.pdf [pdf 45 KB] |