| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 223/09 |
| Hearing date | 1 Jul 2009 |
| Determination date | 08 July 2009 |
| Member | R A Monaghan |
| Representation | T Drake ; J Rooney |
| Location | Auckland |
| Parties | Miller v Fonterra Co-Operative Group Ltd |
| Summary | PRACTICE AND PROCEDURE – Application for removal to Employment Court (“EC”) – After applicant resigned, charged with offences relating to erroneous export entries – Applicant discharged without conviction – Applicant claimed respondent breached implied term of employment agreement (“EA”) that applicant be indemnified for losses arising as result of criminal charges laid against applicant in circumstances applicant alleged were result of applicant’s employment – Applicant later also requested penalty, compliance order for alleged implied term, damages for breach of EA and good faith – Respondent denied was employer, denied existence of indemnity obligation, denied breach of EA, claimed limitation periods applied, applied to strike out matters and counterclaimed – Applicant sought removal to EC under s178(2)(a) Employment Relations Act 2000 (“ERA”) – Claimed three important questions of law: 1) Whether EA contained term respondent would reimburse expenses and indemnify against liabilities incurred in consequence of obeying employer’s orders or arising from reasonable performance of work; 2) Whether applicant entitled to be indemnified or reimbursed for loss of remuneration suffered as consequence of defending criminal proceedings arising out of ways in which employer sold products to customers; 3) Whether obligation of good faith and trust and confidence owed by statute or common law required employers to disclose sufficient facts known to it to relevant agencies so as to protect employees from risk of criminal proceedings when criminal prosecution not likely had relevant agencies been aware of facts - Respondent opposed application for removal – To establish existence of indemnity obligation, applicant referred to duty implied in English common law and EC decision finding implied duty to indemnify former employee for legal expenses existed – Authority accepted little New Zealand authority on issue of implied rights of indemnity for actions carried out in course of employment – Found matters associated with indemnity raised important question of law arising other than incidentally – Found applicant’s third ground for removal concerned similar facts to indemnity so appropriate to also remove on that ground – Authority considered respondent’s strike out applications, limitation claims and counterclaim - Found to avoid plethora of proceedings in different institutions, and in exercise of discretion under s178(2)(d) ERA, entire matter should be removed to EC |
| Result | Application granted ; Matter removed to Court ; Costs reserved |
| Main Category | Practice & Procedure |
| Statutes | Crimes Act 1961;Customs and Excise Act 1996;Dairy Board Act;ERA s178;ERA s178(2)(a);ERA s178(2)(d) |
| Cases Cited | F v Attorney-General [1994] 2 ERNZ 62;R v Miller, 10 May 2007, Judge Roderick Joyce QC, CRI-2006-004-011965 |
| Number of Pages | 6 |
| PDF File Link: | aa 223_09.pdf [pdf 24 KB] |