| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 351 |
| Determination date | 08 August 2011 |
| Member | E Robinson |
| Representation | K Applegate ; K Dunn, J Hardacre |
| Location | Auckland |
| Parties | Rock v STIHL Ltd |
| Summary | PRACTICE AND PROCEDURE – Applicant accepted employment with New Zealand branch of previous Australian employer - Applicant claimed respondent failed to pay relocation expenses, superannuation and bonus in accordance with employment agreement – Respondent claimed applicant failed to bring claim within limitation period – Parties agreed Authority could determine preliminary issue, whether applicant’s claim debarred by s142 Employment Relations Act 2000, on parties’ submissions – Employment agreement provided respondent would meet relocation costs back to Australia – Applicant resigned and estimated relocation expenses of $13,411 – Respondent claimed applicant had already resigned and denied relocation expenses – Applicant filed statement of problem with Authority and attempted to pay filing fee by direct credit – Department of Labour could not confirm payment made until month later - Respondent claimed cause of action arose when employment ended and even if statement of problem sent in time action not commenced before six year period expired – Respondent claimed Authority did not have jurisdiction to extend time period and applicant’s claim barred – Applicant claimed claim arose when applicant aware of breach not last day of employment – Authority found did not have discretion to extend time period for commencing action – Found applicant made effort to lodge application and pay described fee but payment not made until month later – Found applicant did not exercise sufficient due diligence and therefore proceedings not commenced until month after statement of problem filed – Found latest possible time applicant aware of breach six years and one day before proceedings commenced – Found applicant failed to bring relocation expenses claim within six year limitation period – Found applicant ought to have been aware earlier than claimed bonus not paid and failed to bring bonus non-payment claim within six year limitation period - Applicant spoke to manager (“B”) month after became aware of alleged superannuation payments deficit – B claimed parties renegotiated superannuation rate but did not provide evidence of agreement between parties showing rate had changed – Found no evidence parties renegotiated terms – Found applicant had reasonable expectation new employer would continue to make superannuation payments to Australian scheme – Found applicant brought claim to remedy superannuation deficits within 6 year limitation period - Product Manager |
| Result | Application partially granted ; Costs reserved |
| Main Category | Practice & Procedure |
| Statutes | ERA s114(4);ERA s142;EAR r4;EAR r5;EAR r5(2);EAR r6 |
| Cases Cited | Coburn v Colledge [1897] 1 QB 702;White v Taupo Totara Timber Co [1960] NZLR 547;Williams v Attorney-General [1990] 1 NZLR 646 |
| Number of Pages | 10 |
| PDF File Link: | 2011_NZERA_Auckland_351.pdf [pdf 33 KB] |