| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 86A/09 |
| Determination date | 02 July 2009 |
| Member | H Doyle |
| Representation | M Hunt ; T Cleary |
| Location | Christchurch |
| Parties | Walker v Safe Air Ltd |
| Summary | PRACTICE AND PROCEDURE - Application for stay - In determination CA 86/09 applicant reinstated - Respondent challenged determination and sought stay of order for reinstatement until challenge heard - No order for stay sought for other orders made by Authority - Applicant opposed order for stay - Respondent advanced four grounds for granting stay - Applicant away from work for months - Another employee in applicant’s position - Applicant’s Manager had lost trust and confidence in applicant - Urgency sought for challenge fixture - Applicant opposed application for stay on following grounds - Applicant immediately made it known sought reinstatement - Applicant wished to return to work, conduct that gave rise to dismissal occurred six months prior to dismissal, and no performance issues raised in interim - Applicant sent home after turning up to work on date ordered by Authority, in breach of Authority’s order - Authority applied tests for granting stay - Found benefits of successful challenge to determination not lost to respondent if stay not granted - Found prejudice to applicant lessened by payment of salary until challenge dealt with - However, depriving applicant of benefit of working for salary a significant matter given primacy of reinstatement as remedy - Authority found period applicant already out of work combined with time until challenge heard involved undue amount of prejudice to applicant - Authority found respondent’s challenge genuine - Found although in some respects neutral test given party always had right to challenge determination, could be seen to favour respondent - Authority not satisfied prejudice to respondent in having applicant return to work greater than prejudice in not being able to return to work - Respondent’s primary ground for granting stay was loss of trust and confidence in applicant - Authority found similar grounds advanced in unsuccessful opposition to reinstatement - Authority found issue of novelty or importance of questions in challenge to be neutral matter as de novo challenge - Overall justice did not favour grant of stay - Application declined - Purchasing Officer |
| Result | Application dismissed ; Costs reserved |
| Main Category | Practice & Procedure |
| Statutes | ERA s126 |
| Cases Cited | PPCS Ltd v Vakapuna unreported Couch J, 13 Dec 2007, WC 28A/07;The Chief Executive of the Ministry of Agriculture and Forestry v Hughes [2004] 2 ERNZ 18 |
| Number of Pages | 7 |
| PDF File Link: | ca 86a_09.pdf [pdf 34 KB] |