| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 171B/10 |
| Determination date | 08 December 2010 |
| Member | J Crichton |
| Representation | D Beck ; P Anderson |
| Location | Christchurch |
| Parties | Jamieson v McCarthy t/a Christchurch Tours |
| Summary | PRACTICE AND PROCEDURE - Application for stay of proceedings - Authority found applicant had personal grievance and awarded remedies - Respondent filed challenge in Employment Court - Respondent applied for stay of proceedings, or alternatively, application under s123(2) Employment Relations Act 2000 (“ERA”) for order payments be made by instalments - Respondent claimed experiencing financial difficulties and provided affidavit evidence in support - Respondent claimed not in position to pay remedies awarded unless sold assets which would have effect of further reducing income - Claimed trying to sell part of business and so needed to maintain overall viability by retaining assets - Respondent noted applicant impecunious and so if paid amount owed and then successful in challenge believed possibly unable to recover moneys - Respondent proposed paying money into trust account for applicant’s use if challenge unsuccessful - Respondent identified aspects of Authority’s determination believed capable of attack - Respondent acknowledged issues not of public importance, however, were important to respondent and consequences of having to pay award before challenge heard would be dramatic - Applicant claimed application was stalling tactic designed to delay payment of remedies awarded by Authority - Applicant claimed Authority had no power to make order under s123(2) ERA retrospectively - Noted even if did, respondent had made no attempt to pay sums owed - Applicant cast doubt on respondent’s affidavit on financial position as prepared by respondent personally - Authority found appropriate case to exercise discretion to grant application for stay - Therefore, Authority did not need to consider application under s123(2) ERA - Found if stay not granted respondent’s challenge would be rendered nugatory either because of damage to business from sale of assets or subsequent inability to recover moneys paid to applicant, or both - Found applicant protected from potential injury caused by stay by respondent’s proposed payment plan into trust account - Authority rejected applicant’s claim respondent’s challenge was delaying tactic - Found applicant entitled to challenge determination - Application for stay granted - Orders made - COSTS - Costs to lie where they fall |
| Result | Application granted ; Orders made ; Costs to lie where they fall |
| Main Category | Practice & Procedure |
| Statutes | ERA s123(2);ERA Second Schedule cl10(1) |
| Cases Cited | New Zealand Post Primary Teachers' Association v Attorney-General (No 3) [1991] 3 ERNZ 708 |
| Number of Pages | 6 |
| PDF File Link: | ca 171b_10.pdf [pdf 25 KB] |