| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 99/10 |
| Hearing date | 20 Apr 2010 |
| Determination date | 28 April 2010 |
| Member | P Cheyne |
| Representation | A Shaw, K Smith ; G Abdinor |
| Location | Christchurch |
| Parties | Ferguson and Ors v Ferguson Brothers Ltd |
| Summary | PRACTICE AND PROCEDURE – Application for removal to Employment Court (“EC”) – Mackley Ferguson (“MF”) , Mackley William Scott Ferguson (“MWSF”) and James Ferguson (“JF”) employees of Ferguson Brothers Ltd (“FBL”) – MWSF and JF directors and shareholders in company which owned minority interest in FBL – MWSF and JF claimed arrears of wages, unjustified disadvantage, penalties for breach of good faith and ancillary remedies against FBL – MWSF and JF claimed entered into employment agreements with MF as FBL’s managing director that included redundancy compensation – MWSF and JF dismissed for redundancy but received no compensation – FBL argued agreements not bona fide – Second proceedings lodged by FBL – FBL claimed recovery of salaries and expenses paid to MWSF and JF under employment agreements in breach of duties arising under employment relationships and shareholder agreement – FBL claimed penalties against MWSF and JF and common law damages against MF for losses caused by breach of employment relationship with company and penalty for breach of good faith – FBL sought removal of both proceedings to EC – MF, MWSF and JF opposed removal application – Authority found overpayment must be determined before deciding whether jurisdiction to order employee to repay overpayment – Found not necessary to adjourn matter until after EC released similar judgment – FBL argued claims involved large amounts of money and referral to EC would provide certainty and closure – MF, MWSF and JF claimed case based on fact finding and should not be removed to EC – FBL claimed complex commercial aspects to claim – MF, MWSF and JF claimed commercial aspects to claim related to sale and purchase agreements rather than employment disputes – Authority accepted MF, MWSF and JF’s argument – Found FBL failed to establish power to have whole matter removed to EC – Application for removal declined |
| Result | Application dismissed ; Costs reserved |
| Main Category | Practice & Procedure |
| Statutes | ERA s178(2)(a);ERA s178(2)(d) |
| Cases Cited | Hanlon v International Education Foundation (NZ) Inc [1995] ERNZ 1;Mighty River Power Ltd v Erana Palmer unreported, A Dumbleton, 27 May 2009, AA 194/08;NZ Fire Service Commission v Warner and Ors unreported, P Stapp, 4 Nov 2009, WA 171/09 |
| Number of Pages | 6 |
| PDF File Link: | ca 99_10.pdf [pdf 25 KB] |