| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 205/10 |
| Hearing date | 16 Dec 2010 |
| Determination date | 24 December 2010 |
| Member | D Asher |
| Representation | P McBride ; P Churchman |
| Location | Wellington |
| Parties | Barclay and Ors v Cranford Hospice |
| Summary | PRACTICE AND PROCEDURE – Application to strike out proceedings - Respondent underwent restructuring resulting in redundancies – Applicants’ either took voluntary redundancy or were not appointed to new positions resulting from restructure and so made redundant – Respondent sought to strike out part of applicants’ applications on ground some grievances time barred and Authority lacked jurisdiction to hear claim for damages for reputational harm - Applicants’ claimed grievances raised within time and respondent’s claim about defamation misguided as common law contractual duty to protect employees against reputational harm recognised by New Zealand Courts for many years - Authority found application for strike out must meet high threshold – Found case pleaded had to be so clearly untenable could not possibly succeed, jurisdiction to be used sparingly, and Court would not strike out proceedings where had to decide disputed questions of fact - Authority found respondent had raised legitimate concerns about timeliness and adequacy of applicants’ alleged grievances – However, found case pleaded not so clearly untenable could not possibly succeed – Found were disputed questions of fact – Found more evidence required before Authority could determine whether applicants’ notice of grievance to respondent sufficiently specified - Authority noted would expect applicants to provide clear evidence of sufficiency of information at substantive investigation – Authority also put parties on notice of need to fully and clearly address substance of restructuring that resulted in termination of applicants’ employment - Found while labelled “reputational harm” applicants’ claim appeared to be ‘normal’ application for compensation for hurt and humiliation – Found matter could be held over until substantive investigation and not sufficient ground to strike out application – Authority declined respondent’s contention Authority lacked jurisdiction – Strike out application declined - Nurses |
| Result | Application dismissed ; Costs reserved |
| Main Category | Practice & Procedure |
| Cases Cited | Creedy v Commissioner of Police [2006] ERNZ 517;Malik v Bank of Credit and Commerce International SA (in liq) [1997] 3 All ER 1;Sibly v Christchurch City Council [2002] 1 ERNZ 476 |
| Number of Pages | 10 |
| PDF File Link: | wa 205_10.pdf [pdf 32 KB] |