| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 73/10 |
| Determination date | 22 April 2010 |
| Member | G J Wood |
| Representation | P Cranney ; A Cook |
| Location | Wellington |
| Parties | Smith v Stokes Valley Pharmacy (2009) Ltd |
| Summary | PRACTICE AND PROCEDURE - Application for removal to Employment Court (“EC”) - Applicant sought removal on grounds important questions of law likely to arise other than incidentally and in all circumstances EC should determine matter - Respondent considered no important questions of law identified, but because challenge likely and for cost reasons neither consented to nor opposed removal - Applicant dismissed purportedly in reliance on 90 day trial period under s67A Employment Relations Act 2000 (“ERA”) - Applicant claimed important question of law whether respondent could rely on trial period, as employment agreement (“EA”) signed day after started work - Found was question of law as s67A ERA did not specifically provide for that eventuality - Found large number of employees could be affected as many employees did not sign EAs until after started employment - Found applicant’s second question of law whether trial provision then of no effect followed on from first question - Applicant’s third question of law whether payment in lieu of notice was “giving notice” in form required by s67B ERA - Found was question of law as form of notice required not specified in s67B ERA - Found likely to affect large number of employees and employers - Respondent’s argument was question of fact rejected - Found issues of notice and effect of payment in lieu of notice mixed questions of fact and law - Fourth question of law related to meaning of phrase “legal proceedings in respect of the dismissal” in s67B(2) ERA , over actions for underpayment of notice, damages for breach of EA, penalties; effect of non-compliance with s63A ERA and whether and what remedies available in respect of unjustified disadvantage - Found as questions would be testing new legislative provisions would be of significance to employment law generally - Found no reasons for matter not to be removed - As first ground for removal made out Authority did not need to address second ground - Grounds for removal made out - Matter removed to EC - Pharmacy worker |
| Result | Application granted ; No order for costs |
| Main Category | Practice & Procedure |
| Statutes | ERA s67A;ERA s67B;ERA s67B(2);ERA s178(2)(a);ERA s178(2)(d) |
| Cases Cited | GFW Agri-Products Ltd v Gibson [1995] 2 ERNZ 323;Hanlon v International Educational Foundation (NZ) Inc [1995] 1 ERNZ 1 |
| Number of Pages | 3 |
| PDF File Link: | wa 73_10.pdf [pdf 17 KB] |