| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 328/10 |
| Hearing date | 20 Jul 2010 |
| Determination date | 21 July 2010 |
| Member | R Arthur |
| Representation | G Utai (in person) ; A Gane |
| Location | Auckland |
| Parties | Utai v Chief Executive of the Department of Labour |
| Summary | JURISDICTION – Whether applicant’s claim about dismissal from job in Apia, Samoa to be heard under Samoan or New Zealand law – No appearance for applicant – Applicant dismissed for breaching instructions about avoiding conflicts of interest between carrying out role for respondent and business run by mother – Manager identified potential conflict of interest and issued letter of instruction to applicant setting out measures to avoid conflict – Applicant signed instructions – Applicant failed to follow instructions and dismissed for serious misconduct – Applicant raised personal grievance for unjustified dismissal – Respondent argued applicant employed under Samoan law and no New Zealand jurisdiction to pursue claim – Authority found no reference to governing law in employment agreement – Found staff paid in Samoan tala – Found Samoan law applied to applicant’s employment – Found Samoa sovereign nation with own employment law – Found New Zealand’s Employment Relations Act 2000 did not apply extra-territorially – Found New Zealand law tended to accept law of place of performance as applicable law – Found Samoa had most real and substantial connections with applicant’s case and natural forum to pursue claim – RAISING PERSONAL GRIEVANCE – Application for extension to proceed with action out of time – Authority found applicant raised personal grievance within 90 days – Found application lodged in Authority more than four years and three months after grievance raised – Found no evidence to explain why claim not lodged earlier – Found potential prejudice to respondent’s ability to bring evidence to defend dismissal action as manager posted overseas and deputy secretary who signed dismissal letter no longer employee – Found applicant’s chances of success slim – Found applicant unlikely to succeed in establishing respondent acted in unjustified manner in carrying out inquiry or dismissal decision – Found no compelling reason to permit extension of time – Application dismissed – Visa Officer |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Jurisdiction |
| Statutes | ERA s114(1);ERA s114(6);ERA s219(1);ERA Second Schedule cl12;Labour and Employment Act 1972 s20 |
| Cases Cited | Brighouse v National Bank of Samoa Ltd [2004] WSSC 1;Day v Whitcoulls Group Ltd [1997] ERNZ 541;Jardine Risk Consultants v Beal [2000] ERNZ 405;Keil v Polynesian Airlines [1980-1983] WSLR 395;Liki v Samoa Breweries Ltd [2005] WSSC 3;Royds v FAI General Insurance Company Limited [1999] ERNZ 820;Roberts v Commissioner of Police unreported, Colgan CJ, 27 June 2006, AC 33/06;Tu'itupou v Guardian Healthcare Limited unreported, Perkins J, 6 Sept 2006, AC 50/06 |
| Number of Pages | 9 |
| PDF File Link: | aa 328_10.pdf [pdf 42 KB] |