| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 13/10 |
| Hearing date | 10 Dec - 21 Dec 2009 (2 days) |
| Determination date | 01 February 2010 |
| Member | D Asher |
| Representation | A Parker ; F Minehan |
| Location | Wellington |
| Parties | Wag & Harcombe Ltd v Pike |
| Summary | BREACH OF CONTRACT – Respondent and other employees allowed regular customer (“L”) to purchase non-fuel items on BP fuel card – Card stated “fuel and oil only” therefore purchase outside of card’s terms and conditions – Terms of card confidential to BP and applicant – Employment agreement (“EA”) silent on use of card and no guidelines for employees on proper use of card – L incurred $56,688 on card and made no repayments – BP required applicant to repay BP 25 percent of total sum incurred by L – Applicant sought recovery of sum against respondent – Applicant claimed respondent breached EA by letting L make non-fuel purchases therefore liable for loss of $6,228 - Respondent argued no liability for loss and loss not reasonably foreseeable – Authority found respondent and other employees not sufficiently informed of their particular duty relating to proper use of fuel cards – Found EA silent on matter and no guidelines or meetings to inform employees – Found statement “fuel and oil” insufficient to amount to an instruction - Found applicant derived no benefit from L’s transactions – Found no breach of express or implied duties by respondent – Found even if found breach, loss not reasonably foreseeable – Found respondent acted in absence of instructions – Found unclear when applicant knew of problems arising from L’s purchases – Found unclear what steps and how quickly applicant acted when informed of L’s improper purchases – Found respondent good employee and situation one-off aberration rather than pervading characteristic – Found respondent genuinely believed L honest customer – No breach – Recovery of monies declined – Authority noted neither applicant or BP took steps in relation to L’s arguably fraudulent conduct – Customer service representative |
| Result | Application dismissed ; Costs reserved |
| Main Category | Breach of Contract |
| Statutes | ERA s4;ERA s4(1A)(b) |
| Cases Cited | Attorney-General v Gilbert [2002] 1 ERNZ 31;Mahmud v Bank of Credit and Commerce International SA [1998] AC 20;Masonry Design Solutions Limited v Bettany unreported, Colgan CJ, 21 August 2009, AC 30/09 |
| Number of Pages | 8 |
| PDF File Link: | wa 13_10.pdf [pdf 30 KB] |