| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 253 |
| Hearing date | 19 Apr 2011 - 20 Apr 2011 (2 days) |
| Determination date | 13 June 2011 |
| Member | E Robinson |
| Representation | E Hartdegen ; K Thompson |
| Location | Auckland |
| Parties | Heyneke and Anor v Air New Zealand Ltd |
| Other Parties | Pereira |
| Summary | GOOD FAITH - BREACH OF CONTRACT – Preliminary issue - Respondent undertook recruitment exercises and interviewees included employees of another airline (“SAA”) - Applicants claimed respondent breached good faith obligations and misrepresented staff travel privileges available as employees of respondent - Applicants claimed breach and misrepresentations arose from actions and verbal statements made by respondent during recruitment meetings and interviews – Interviewer (“S”) claimed first applicant (“H”) did not ask about staff travel privileges and, if applicant had done so, would have said privileges were not the same or similar to those offered by SAA - H claimed asked interviewer (“L”) about staff travel and told would receive discounted staff travel with respondent – H claimed had specifically asked what airfare from New Zealand to South Africa might cost and told would cost same as amount H paid for discounted trip with SAA – Other interviewers claimed overheard L telling interviewee to address questions to human resources staff – L claimed did not tell any interviewee about discounted staff travel as outside L’s technical role and would have recalled telling H flight to South Africa was very low price – Another interviewer supported L’s evidence that no discussion of staff travel – Interviewer (“M”) denied any discussion with H about staff travel – M claimed in all interviews told interviewees staff travel not available until six months service completed and other travel conditions applied - H’s girlfriend (“E”) claimed told by H staff discounts available with respondent and respondent’s airline partner and only slightly more expensive than SAA’s travel costs – Applicants claimed discounted staff travel pivotal in decision to commence employment with respondent – Authority noted at investigation meeting H claimed staff discounts not pivotal to travel decision - Second applicant (“P”) claimed told by M air travel to South Africa no problem as flights available with respondent’s partner – M denied told P staff travel costs with respondent same as SAA staff travel costs – M claimed when asked about travel to South Africa invariably told interviewees could use staff travel privileges to fly to respondent destinations only and would need another carrier to travel to South Africa – Authority noted surprising, given importance of staff travel to applicants and all interviewees told to contact S if had queries, applicant did not contact S to confirm staff travel – Noted employment agreement superseded all previous communications between parties – Found H assumed could use respondent’s partners to travel to South Africa – Found H’s allegation of misrepresentation contradicted by other interviewers’ evidence was no discussion of staff travel privileges – P claimed told by M although respondent did not fly to South Africa could use one of respondent’s partners and assumed would receive low cost travel – Authority noted P did not provide supporting evidence of conversation with M and also did not contact interviewers to confirm staff travel discount – Found information provided by S and M to applicants factual and truthful and assumptions made by applicants not reasonable – Noted after respondent made aware of applicants’ concerns, negotiated with SAA in attempt to agree on discounted staff travel for respondent’s employees – Found respondent acted as fair and reasonable employer – Found more likely than not no misrepresentations made to applicants about discounted staff travel - Found, as no misrepresentations, respondent did not breach good faith obligations - PRACTICE AND PROCEDURE - Applicants claimed misleading conduct breached Fair Trading Act 1986 (“FTA”) – Authority found as no misrepresentations by respondent, no need to determine breach of FTA claim – Noted claim also outside 3 year limitation period – COUNTER CLAIM - JURISDICTION - Respondent claimed Authority did not have jurisdiction to hear claim as applicants not employees, alleged misrepresentations made outside New Zealand and relevant legislation – Authority noted as consequence of findings, no need to address respondent’s jurisdiction claim – Aircraft Engineers |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Breach of Contract |
| Statutes | Contractual Remedies Act 1979;ERA s4;ERA s4(2);ERA s6(1)(b)(ii);Fair Trading Act 1986 s12;Fair Trading Act 1986 s43(5) |
| Number of Pages | 15 |
| PDF File Link: | 2011_NZERA_Auckland_253.pdf [pdf 50 KB] |