| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 136/09 |
| Hearing date | 17 Sep 2009 |
| Determination date | 18 September 2009 |
| Member | D Asher |
| Representation | G Davenport ; P Jagose, J Keane |
| Location | Wellington |
| Parties | Plumbers, Gasfitters and Drainlayers Board v Routhan and Anor |
| Other Parties | Chapman Tripp |
| Summary | INJUNCTION – Applicant sought interim injunction requiring first respondent (“R”) to return all files and documents belonging to applicant or relating to its business, including such material held on R’s behalf by third party such as second respondent (“solicitors”) – R employed as registrar or chief executive of applicant – Applicant suspended R during investigation into potentially serious concerns regarding R’s conduct – R confirmed in letters from solicitors that he or solicitors held applicant’s documents, including personnel files relating to other staff and documents from files relating to business of applicant – R accepted documents applicant’s property – R refused requests to return documents – Applicant claimed R still employee and employment agreement required compliance with applicant’s instructions – Applicant claimed no lawful right to refuse instruction and actions not authorised by Protected Disclosures Act 2000 (“PDA”) – Applicant claimed assertion that return of property would disclose legal advice was nonsense and misapplied case law – Respondents argued documents in R’s possession also in applicant’s possession – Respondents argued return of documents would materially hamper R’s ability to participate in investigation – Respondents argued R discovered serious issues so took documents home to investigate – Respondents argued R subjected to sustained campaign by applicant to undermine R – Respondents argued R communicated with solicitors and provided copies of relevant documents from applicant to obtain legal advice and representation in preparation for disciplinary investigation – Respondents argued documents sourced from applicant were in solicitors’ possession and clearly indicated subjects on which R sought confidential legal advice, and subjects privileged from disclosure – Parties accepted interim injunction order sought only impacted on R not solicitors – During investigation meeting, R accepted provision of documents by R to solicitors not protected by PDA – Authority found applicant had arguable case for substantive relief, as R failed to comply with lawful instruction and retention of documents jeopardising staff morale and business – Found applicant had legitimate claim for return of property – Found retention of documents not justified by fact documents copies – Found no adequate alternative remedy available to applicant – Found balance of convenience lay with applicant – Found R able to access relevant documentation arising out of employment relationship problems by, if necessary, applying to Authority under s160 Employment Relations Act 2000 - Found loss of documentation undermined applicant’s ability to perform statutory functions and violated privacy of other employees – Found would be profoundly inequitable for Authority to condone R’s unauthorised removal of applicant’s property by acceding to R’s argument that return would disclose nature of legal advice – Found avenues available to R to legitimately access relevant documentation held by applicant – Found overall justice required granting application – Authority ordered R return to applicant all files and documents relating to any staff member or Board consultant and any files or documents including computer files relating to any business of applicant, including such documents or copies held on R’s behalf by any third party, including solicitors |
| Result | Application granted ; Orders made |
| Main Category | Injunction |
| Statutes | ERA s160;Plumbers, Gasfitters and Drainlayers Act 2006 s13;Protected Disclosures Act 2000 |
| Cases Cited | Allright v Canon New Zealand Ltd unreported Couch J, 3 Dec 2008, AC 47/08;CE Elley Ltd v Wairoa-Harrison (1987) 1 NZELC 95620;Credit Consultants Ltd v Wilson and Anor [2007] ERNZ 205;Simunovich Fisheries Ltd v Television New Zealand Ltd [2008] NZCA 350 |
| Number of Pages | 6 |
| PDF File Link: | wa 136_09.pdf [pdf 23 KB] |