| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 158/10 |
| Determination date | 06 August 2010 |
| Member | M B Loftus |
| Representation | C Nickalls ; M Kirk |
| Location | Christchurch |
| Parties | Clark v Nelson Marlborough Institute of Technology |
| Summary | PRACTICE AND PROCEDURE - Whether applicant’s employment relationship problem to be determined in Authority or Employment Court (“EC”) - Applicant filed Statement of Problem in Authority - Respondent claimed grievance not raised within 90 days - Authority found grievance not raised within 90 days in preliminary investigation meeting - Applicant successfully challenged Authority’s finding in EC - EC observed 90 day issue may be irrelevant in respect of some of issues as could be dispute rather than personal grievances - EC drew parties attention to full bench decision of Abernethy v Dynea New Zealand Ltd [2007] ERNZ 271 (“Abernethy”) - Abernethy dealt with issue of what is before EC when was challenge to Authority determination that disposed of litigation on preliminary point - EC held where party elected to challenge preliminary Authority determination which had effect of resolving employment relationship problem before it, entire employment relationship problem was then before EC for resolution and not Authority - Applicant claimed matter remained in Authority - Respondent claimed Abernethy applied and matter should be removed to EC - Authority found if matter were clearly solely personal grievance then Abernethy applied and matter to be removed to EC - However, found some complaints personal grievances and some in nature of dispute - Therefore some elements must be removed to EC while others remained within Authority’s jurisdiction - Authority found made no sense to proceed with matter when could not dispose of it in its entirety when EC could - Found having two hearings when could have one would place unreasonable costs on parties - Found applicant continued to approach matter as personal grievance - Found appropriate that EC hear and determine matter - Matter removed to EC - Found appropriate to leave costs to be determined by EC |
| Result | Orders made ; Costs to be determined by Employment Court |
| Main Category | Practice & Procedure |
| Statutes | ERA s103;ERA s114;ERA s129 |
| Cases Cited | Abernethy v Dynea New Zealand Ltd [2007] ERNZ 271;Clark v Nelson Marlborough Institute of Technology unreported, P Montgomery, 12 Nov 2007, CA 135/07;Clark v Nelson Marlborough Institute of Technology unreported, Couch J, 19 Aug 2008, CC 12/08 |
| Number of Pages | 6 |
| PDF File Link: | ca 158_10.pdf [pdf 23 KB] |