| Summary |
BREACH OF CONTRACT - Applicants recruited in South Africa - Applicants claimed representations made about pay and conditions would receive in New Zealand – Terms and conditions were contractual entitlements of wages and service recognition, relocation expenses, residency costs, healthcare and education - Authority found more likely than not that specific representations about nature of terms and conditions were not made or did not have meaning that applicants alleged – Found no contemporaneous documentary evidence supporting allegations as to what respondent’s representatives told applicants – Found applicants acknowledged that real concern and primary motivator for emigration to New Zealand was safety and security of families, not close attention to details of terms and conditions of employment – Found applicants only raised concerns about difference between alleged representations and actual terms and conditions provided by respondent some months after arriving in New Zealand - Authority found if wrong as to whether representations made as alleged, case would fail anyway due to enforceability – Where recruitment interviews about conditions ambiguous, letters of offer clear - BREACH OF CONTRACTUAL REMEDIES ACT 1979 – BREACH OF FAIR TRADING ACT 1986 – Applicants sought damages under CRA to cover costs some incurred for healthcare, education and residency applications, and damages under FTA including damages for distress for alleged misleading statements about employment offered – Due to above findings, no need to consider applicants’ submissions regarding FTA and CRA – Authority dismissed claims - PENALTY – Applicants sought penalties for not providing reasonable opportunity to seek advice on terms of employment – Authority found applicants did not inform respondent of difficulty getting advice – No requirement for respondent to arrange access to New Zealand legal advisors in South Africa without applicants requests – Applicants did not contact relevant union - Applicants had reasonable opportunity to seek advice – Authority declined to impose penalty - GOOD FAITH – Applicants sought declaration that respondent did not act in good faith in dealing with concerns – Authority found respondent investigated applicants’ concerns through meetings, correspondence and mediation – However respondent breached duty of good faith where representative made comment discouraging applicant from discussing whether terms in offer letter being honoured with union representative – Comments breached duty of good faith in employment relationships towards applicants as union members and also relevant union – Breach intended to undermine employment relationship by discouraging applicant from exercising right to seek union assistance – If sought, Authority would have imposed penalty under s4A(b) ERA - Train drivers |