| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 60 |
| Hearing date | 7 Feb 2011 - 9 Feb 2011 (2 days) |
| Determination date | 16 February 2011 |
| Member | A Dumbleton |
| Representation | J Roberts, H Dymond-Cate ; P Swarbrick |
| Location | Auckland |
| Parties | MacDonald v Canoe Racing New Zealand |
| Summary | PRACTICE AND PROCEDURE – Applicant employed on fixed term employment agreement (“EA”) pursuant to s66 Employment Relations Act 2000 (“ERA”) – Over two months after fixed term ended applicant’s solicitors wrote to respondent raising personal grievances of unjustified dismissal and unjustified disadvantage – Claimed EA did not comply with s66 ERA as did not state in writing way in which employment to end or reasons for ending that way – Applicant sought determination that fixed term in EA ineffective under s66(6) ERA, EA and employment relationship continued, and orders that respondent comply with ongoing EA, in particular paying applicant wages - Respondent accepted EA did not comply with s66 ERA – However, Authority found applicant’s lack of challenge or complaint in relation to employment status at time signed EA reflected knowledge that employment relationship intended to be fixed term - Found at date grievances raised employment relationship between parties unequivocally ended – Found applicant former employee who had elected to treat fixed term as ineffective under s66(6)(b) ERA - Found election under s66(6)(b) ERA did not trigger revival of former employment relationship that had earlier ceased to exist - Authority declared fixed term in EA ineffective under s66(6) ERA - Found employment terminated and remained terminated – Found only remedy of reinstatement available in successful personal grievance claim could revive it - Found no basis on which order could be made requiring respondent to pay wages to applicant after termination of employment - However, applicant could become entitled to order of lost wages if personal grievance claim established and remedies held to be available – Found parties now in good position to consider whether further mediation would be most expeditious and economical way of resolving employment relationship problem – Authority to also make arrangements with counsel for resumption of investigation meeting to hear evidence and submissions on personal grievance claims and applicant’s other claims - Coach |
| Result | Orders made ; Costs reserved |
| Main Category | Practice & Procedure |
| Statutes | ERA s4;ERA s66;ERA s66(4);ERA s66(6);ERA s66(6)(a);ERA s66(6)(b);ERA s68;ERA s69;ERA Second Schedule cl10 |
| Cases Cited | Schneller v Ranworth Healthcare Ltd unreported, Colgan CJ, 5 Jun 2007, AC 33/07;Shortland v Alexander Construction Limited [2010] NZEMPC 41;Wood v Television New Zealand Ltd unreported, L Robinson, 7 Nov 2005, AA 439/05;Yuan Cheng International Investment Group Ltd v Buer [2006] ERNZ 871 |
| Number of Pages | 10 |
| PDF File Link: | 2011_NZERA_Auckland_60.pdf [pdf 35 KB] |