| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 74A/09 |
| Hearing date | 23 Jun 2009 - 25 Jun 2009 (3 days) |
| Determination date | 05 October 2009 |
| Member | P Montgomery |
| Representation | P McBride ; J Copeland |
| Location | Te Anau |
| Parties | New Zealand Merchant Service Guild & Ors v Real Journeys Ltd |
| Other Parties | Bourne, Conrad, King-Turner |
| Summary | BREACH OF CONTRACT – GOOD FAITH – UNJUSTIFIED DISMISSAL – Applicants claimed respondent misapplied relevant section of Collective Employment Agreement (“CEA”) and breached good faith obligations – Respondent made proposal in order to retain staff – Respondent also proposed one redundancy – Applicants failed to provide feedback in timely manner – Respondent argued delay in breach of good faith provisions – First applicant rejected proposal to vary CEA and respondent subsequently redesigned proposal – No response received – Applicants raised dispute – Applicants’ alleged respondent’s process unlawful and unjustifiable due to composition of selection pool and selection criteria – Authority found all launch masters should be part of selection pool – Respondent selection pool based on greater cost savings - Found selection criteria rested solely with respondent – Found no evidence establishing any enmity towards first applicant’s members – Found no undertakings as to damages required – Found respondent acted in accordance with CEA in relation to redundancy issue – Found no breach by respondent of good faith obligations – PENALTY – Counterclaim – Respondents counter-claimed personal grievance allegations were abuse of process and designed to delay restructuring process – Respondents claimed incurred significant costs because of delaying tactics and sought penalties – Respondents sought striking-out of dispute – Applicants denied breaches alleged and submitted were simply exercising rights under law – Found raising of dispute not breach of process but manner in which raised not in accord with principles of good faith or CEA – Found delays in providing feedback about proposal not deliberate but very unhelpful due to seriousness of situation – Found behaviour fell short of being responsive and communicative and in breach of good faith obligations – Found applicants’ behaviour in breach of obligations under CEA – No order for penalties made due to lack of information – Authority invited submissions on penalties to be determined at later date – Launch masters |
| Result | Application dismissed ; Costs reserved |
| Main Category | Breach of Contract |
| Statutes | ERA s4;ERA s4(1A);ERA s103A;ERA s104(1);ERA s107;ERA s107(1)(b);ERA s107(1)(d);ERA s119;ERA s127(2);ERA s135;ERA s160(l)(m)(i);Employment Relations Authority Regulations 2000 r4;Employment Relations Authority Regulations 2000 Form 2;High Court Rules r7.54 |
| Cases Cited | Mackintosh v Carter Holt Harvey Limited unreported, Travis J, 30 Nov 2000, AC 93/00;NZALPA v Jetconnect unreported, Colgan CJ, 27 May 2009, AC 23/09;NZ Sea Fasteners Stainless Limited v Thwaites [2000] 2 NZLR 565;Pacific Rim Investments Flight Catering v Groom [1998] 3 ERNZ 1000;Simpson Farms Limited v Aberhart unreported, Colgan CJ, 14 Sept 2006, AC 52/06 |
| Number of Pages | 16 |
| PDF File Link: | ca 74a_09.pdf [pdf 50 KB] |