| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 186 |
| Hearing date | 12 Apr 2011 - 13 Apr 2011 (2 days) |
| Determination date | 06 May 2011 |
| Member | R Arthur |
| Representation | T Beatty (in person) ; C Peacock |
| Location | Auckland |
| Parties | Beatty v SKF New Zealand Ltd |
| Summary | COMPLIANCE ORDER – Applicant sought compliance with settlement agreement (“SA”) – Applicant claimed respondent made negative comments about applicant to prospective employers contrary to SA – SA stated both parties mutually agreed to end employment – Applicant claimed had lost or was not appointed to nine jobs over five years – Sought reimbursement of lost wages and compensation for distress caused – Respondent claimed did not breach SA and denied any responsibility for applicant’s dismissals or unsuccessful applications – Applicant did not provide witness statements – Authority noted applicant did not approach witnesses about giving evidence – Applicant denied permission for wife and son to give evidence day before hearing, neither provided written statement – Respondent lodged multiple witness statements denying respondent gave poor, adverse or discreditable references on various occasions – Authority found applicant’s evidence did not establish on balance of probabilities respondent breached SA - Found terms of SA not as broad as alleged and applicant’s evidence did not establish losses allegedly suffered – Applicant claimed SA not full and final as applicant unconscious at time of signing due to health problems and stress of losing job – Claimed if terms did not bind respondent to provide references to prospective employers, SA should be reviewed – Authority found implausible that lawyer and mediator present at time SA signed would have allowed applicant to sign SA if suffering obvious impairment – Noted applicant failed to provide medical evidence of impairment – Found SA allowed respondent, where applicant’s authority given, to make full and frank disclosure of respondent’s views of applicant’s work – No clause preventing each party from speaking negatively about other party – Found purposively SA allowed respondent to refer to employment ending by mutual arrangement and not say applicant dismissed – Found even if respondent made negative comments about applicant to prospective employers, no breach of SA – Found applicant’s evidence of interactions with nine prospective employers did not support applicant’s allegations respondent made negative comments about applicant – Respondent acknowledged did give negative evaluation of applicant to prospective employer – Authority found respondent not bound by earlier generalised admissions in response to applicant’s first statement of problem as lacked detail – Noted respondent provided references for applicant when not obliged and offered applicant job counselling at respondent’s expense - Compliance order declined – Found applicant’s evidence did not show but for comments allegedly made by respondent to prospective employees applicant would have got jobs – No damages - PENALTY – Applicant sought penalty for breach – Authority noted almost all alleged breaches of SA by respondent outside 12 month period for which penalty could be claimed – No penalty |
| Result | Application dismissed ; Costs reserved |
| Main Category | Compliance Order |
| Statutes | ERA s135(5);ERA s149;ERA s174 |
| Cases Cited | PBO Ltd (formerly Rush Security Ltd) v Da Cruz [2005] ERNZ 808 |
| Number of Pages | 15 |
| PDF File Link: | 2011_NZERA_Auckland_186.pdf [pdf 42 KB] |