| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 422 |
| Determination date | 23 September 2011 |
| Member | R Larmer |
| Representation | S Mitchell ; R McIllraith, K Dunn |
| Location | Auckland |
| Parties | McKean v Ports of Auckland Ltd |
| Summary | PRACTICE AND PROCEDURE – Removal to Employment Court (“EC”) on own motion – Respondent (Ports of Auckland Limited – employer) claimed lost trust and confidence in applicant (Mr McKean – employee) as result of comments made about identifiable employees and former managers in magazine column published quarterly by union – Applicant dismissed – Applicant sought interim reinstatement and claimed respondent management not audience for column and wrote it as action of union official – Authority found amendments made to Employment Relations Act 2000 (“ERA”) relevant including test of justification, reinstatement and Authority’s ability to remove matter to EC on own motion – Found removal of matters would enable EC to build up early body of jurisprudence on how new justification test should be applied, how ‘would’ versus ‘could’ distinction applied to practice, and what significance change to status of reinstatement as remedy should have on Authority’s consideration of interim reinstatement applications – Authority found EC would be able to hear interim reinstatement application before Authority could – Parties did not oppose removal – Applicant claimed important question of law arose in relation to whether actions taken by union official, who was also employee, could be treated as misconduct by employer – Found precedent for issue raised by applicant so removal on that ground not appropriate – Found interim reinstatement application and substantive dismissal grievance both involved important questions of law which arose other than incidentally – Found preferable EC put in position to build up body of jurisprudence on changes to ERA as soon as possible – Found wider public interest to gain certainty in relation to law changes – Found good fact situation to remove to EC – Found EC would obtain benefit from hearing from experienced counsel – Matter removed to EC |
| Result | Matter removed to Court ; Costs reserved |
| Main Category | Practice & Procedure |
| Statutes | ERA s103A;ERA s125;ERA s178(1);ERA s178(2)(a);ERA s178(2)(d);Employment Relations Amendment Act 2010 |
| Cases Cited | Angus v Ports of Auckland Limited [2011] NZERA Auckland 401;Game v Northland Co-Operative Dairy Company Limited unreported, Travis J, 10 April 2001, AC 28/01;Manoharan v Waiariki Institute of Technology [2011] NZERA Auckland 352;Sigglekow v Waikato District Health Board [2011] NZERA Auckland 384;Smith v The Christchurch Press Co Limited [2011] 1 NZLR 407 |
| Number of Pages | 7 |
| PDF File Link: | 2011_NZERA_Auckland_422.pdf [pdf 22 KB] |