| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 106/09 |
| Determination date | 11 August 2009 |
| Member | G J Wood |
| Representation | K O'Sullivan ; A Caisley |
| Location | Wellington |
| Parties | New Zealand Tramways and Public Passengers Transport Employees' Union Inc and Anor v Wellington City Transport Ltd |
| Other Parties | Xie |
| Summary | DISPUTE - Second applicant charged with indecent assault following complaint by female passenger - Matter later withdrawn - Collective employment agreement (“CEA”) provided respondent would pay legal fees of operators who successfully defended charge brought against them while on duty and driving respondent’s vehicle when was driving-related prosecution - Withdrawal of prosecution constituted successful defence against charge under CEA - Applicants claimed reimbursement of second applicant’s legal expenses - Respondent claimed indecent assault not driving related prosecution so not required to pay - Respondent’s offer to share costs equally rejected - Authority found wording “driving related” referred to word “prosecution” which immediately followed it - Found for protection of clause to apply prosecution must be prosecution for driving-related offence - Found indecent assault not driving offence - Found if clause meant to cover offences such as indecent assault, need not contain phrase “when it is a driving-related prosecution” - Clause could have said respondent would pay legal fees of operators who successfully defended any charge brought against them but did not - Found as matter of interpretation of CEA, prosecution or charge of indecent assault not covered by clause - Authority accepted that term “relating to” should be given general and far reaching interpretation, but did not override express construction of clause - Alternatively, applicants claimed respondent required to indemnify second applicant, under common law, for defending himself against charges bought while acting as respondent’s agent - Respondent denied common law liability - Authority found common law right could be excluded or modified by express terms of contract between principal and agent - Found clause in CEA could have no other purpose than to modify common law as to indemnification - As second applicant’s claim not covered by CEA could not be covered by common law rights - Claim dismissed - Bus driver |
| Result | Questions answered in favour of respondent ; Costs reserved |
| Main Category | Dispute |
| Cases Cited | F v Attorney-General [1994] 2 ERNZ 62 |
| Number of Pages | 4 |
| PDF File Link: | wa 106_09.pdf [pdf 21 KB] |