| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 213 |
| Hearing date | 26 May 2009 - 20 Oct 2009 (8 days) |
| Determination date | 19 May 2011 |
| Member | Y S Oldfield |
| Representation | S Barter ; D Erickson |
| Location | Auckland |
| Parties | Zion Wildlife Gardens Ltd v Busch |
| Summary | BREACH OF CONTRACT – Applicant claimed respondent breached implied terms of employment agreement as cancelled interactive tours - Authority noted significant delays in entire investigation including representation changes, claim amendments and adjournments – Parties previously agreed only liability should be determined at current investigation, if respondent found liable both parties reserved right to provide further evidence – Applicant’s interactive tours with lions significant source of revenue for wildlife park (“Z”) – Applicant directed tour bookings to cease – Applicant claimed respondent said no longer doing tours as nothing in it for respondent – Other employees claimed respondent told them separately cancelling tours to damage business – Employee claimed heard respondent say if could not regain control of Z, would make sure no-one else did – Ministry of Agriculture and Fisheries (“MAF”) raised animal welfare and maintenance concerns with Z – MAF recommended improvement and formally requested corrective action be taken to remedy some concerns – MAF confirmed with applicant concerns did not prevent continuation of tours – Applicant informed respondent twice tour cancellation had serious effect on Z’s revenue – Respondent did not respond – Authority noted applicant did not directly instruct respondent to resume tours – Applicant claimed decision within respondent’s discretion but no legitimate reason for cancellation – Respondent claimed decision within discretion as licensed operator of Z and justified by health and safety concerns – Respondent replaced by new operator (“H”) – H claimed cancellation not in applicant’s best interests and tours could have continued with modifications – H claimed respondent should have addressed concerns – Respondent claimed excluded from Z management by applicant and impossible to train and supervise handlers or make financial decisions – Applicant acknowledged financial decisions made without respondent and some staff told not to take direction from respondent – H made changes decreasing risk of animals escaping and continued tours until keeper fatally mauled – Authority found applicant cancelled tours as not getting anything out of them – Found until H made changes not consistent with obligations of licensed operator to resume tours – Found cancelling tours right decision and health and safety issues valid reason - Respondent’s actions did not breach contract – No damages awarded - Applicant claimed respondent breached implied terms of employment agreement as took applicant’s property – Authority previously determined respondent took band saw belonging to company (“C”) operating Z but found compliance order ineffective as band saw sold – Applicant claimed C supported payment of damages to applicant – Authority found respondent to pay applicant $10,657 damages for band saw – Interest payable – Applicant claimed respondent breached implied terms of employment agreement as withheld applicant’s property – Authority found $10,742 damages should be awarded for loss of use of property where supported by evidence – Interest payable - Applicant claimed increased security required as respondent threatened other employees and removed animal files without authority breaching implied terms of employment agreement – Applicant’s witnesses claimed security guards not used before incidents and locks and cameras installed by Z necessary – Respondent claimed applicant exaggerated incidents and had right to access records – Authority found security engaged for non-employment matters and to prevent respondent removing records needed access to – Found locks and cameras not security measures outside normal course of events – Claim for damages failed – Applicant claimed respondent retained payment from photographers (“M”) who photographed lions – Claimed payment was to be made to applicant, not respondent personally - Authority found respondent not authorised to take M’s fee – Respondent to pay applicant $3,712 damages – Interest payable – PENALTY – Authority found appropriation of payments for M and band saw were deliberate actions seriously breaching employment agreement – Found could not award penalty as claims outside time limit and applicant did not raise argument why period should be extended – No penalty – Further damages and interest questions of claim reserved - Wildlife Park Operator |
| Result | Application dismissed (Breach of contract)(Damages for cancellation of interactive tours) (Penalty) ; Applications granted (Breach of contract)(Damages for loss of property)($10,742.15) (Damages for band saw)($10,657.78) (Damages for appropriation of photographers’ fee)($3,712.50) ; Interest (8.4%) ; Costs reserved |
| Main Category | Breach of Contract |
| Statutes | Biosecurity Act 1993;Hazardous Substances and New Organisms Act 1996;ERA s135;ERA s135(5);ERA s160(1)(a);ERA Second Schedule cl11 |
| Cases Cited | Busch v Zion Wildlife Gardens Ltd & Anor, unreported, Y Oldfield, 9 December 2008, AA 415/08;Busch v Zion Wildlife Gardens Ltd, unreported, Y Oldfield, 31 July 2009, AA 257/09;New Zealand Timber Industry IUOW v F L Anderson Ltd [1989] 3 NZILR 94;Panel Holdings Ltd v Paki, unreported, D King, 3 August 2007, AA 232/07;Zion Wildlife Gardens Ltd v Busch, unreported, Y Oldfield, 4 November 2009, AA 257B/09 |
| Number of Pages | 22 |
| PDF File Link: | 2011_NZERA_Auckland_213.pdf [pdf 61 KB] |