| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 481 |
| Determination date | 07 November 2011 |
| Member | E Robinson |
| Representation | P Muir, D Mackinnon ; P Skelton |
| Location | Auckland |
| Parties | Lawrence and Anor v Lock and Anor (as liquidators of Ex Ced Foods) |
| Other Parties | Frankish, Sheaton |
| Summary | PRACTICE AND PROCEDURE – Application for removal to Employment Court (“EC”) – Respondent sought order for removal on grounds that important question of law likely to arise and in all circumstances EC should determine matter – Questions were whether employee had duty to mitigate loss if not given agreed notice – Whether earnings received by employee during notice period must be deducted in assessing employee’s loss – Whether, where employment terminated by receivers and same legal entity offers employment, redundancy situation and eligibility for compensation arises, duty to mitigate loss arises and employee entitled to payment in lieu of notice – Applicants did not oppose removal – Applicants’ previous employer (“Company”) went into receivership - Applicants offered employment by respondent on similar but less favourable terms – Consideration for applicants accepting offers of employment was acknowledgement from respondent of secured and unsecured claims to contractual and statutory entitlements – Applicants received payment of preferential claims – Applicants submitted unsecured creditor’s claims for balance of total employee claims – Respondent paid out all unsecured claims by Company employees excluding applicants’ claims – Found duties, responsibilities and rights of employees were important questions of law and questions would be decisive or important aspect of outcome – Found as matter protracted removal to EC was more efficient allocation of judicial resources – Matter to be removed |
| Result | Application granted ; Costs reserved |
| Main Category | Practice & Procedure |
| Statutes | ERA s178(2);ERA s178(2)(c);ERA s178(2)(d);Receiverships Act 1993 s32(1)(b) |
| Cases Cited | Hanlon v International Educational Foundation (NZ) Inc [1995] 1 ERNZ 1 |
| Number of Pages | 4 |
| PDF File Link: | 2011_NZERA_Auckland_481.pdf [pdf 20 KB] |