Aztec Packaging Ltd v Vanessa Jean Malevris

• Jurisdiction: New Zealand
• Judge: R M Bell
• Judgment Date: 23 February 2012
• Neutral Citation: [2012] NZHC 243
• Docket Number: CIV-2011-404-5803
• Court: High Court
• Date: 23 February 2012

BETWEEN

Under Part 13 Of The High Court Rules

In the matter OF an application for summary judgment

Aztec Packaging Limited

Plaintiff

and

Vanessa Jean Malevris

Defendant

[2012] NZHC 243

CIV-2011-404-5803

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

Application for summary judgment in respect of claims for money had and received and breach of fiduciary duty — employee overpaid herself during the course of her employment — employer applied for summary judgment in High Court arguing that it could do so as it was not claiming a breach of the employment agreement — whether High Court had jurisdiction where there were concurrent causes of action — whether matter was within the exclusive jurisdiction of the Employment Relations Authority.

Appearances:

Ting-Chung Danny Wu for Plaintiff

No appearance for Defendant

JUDGMENT OF ASSOCIATE JUDGE R M Bell

1 This application for summary judgment was called before me on 12 December 2011. I adjourned the matter to 16 February 2012, because I had doubts whether this court has jurisdiction to hear the causes of action in the plaintiff's statement of claim. The defendant had been served on 6 December 2011. Accordingly, she had not received the 15 working days notice required. She has not taken any steps in the meantime.

2 The plaintiff filed a memorandum for the hearing on 16 February 2012. The memorandum addressed the jurisdiction question. I reserved my decision.

3 The plaintiff's statement of claim says that the defendant worked for the plaintiff as senior office administrator from 30 January 2007 until 22 March 2011, the date of acceptance of her resignation. As senior office administrator, she was responsible for accounts payable and receivable, wages and salaries, debt collection, overseas payments, PAYE, holiday and sickness records, and a number of other accounting and office duties.

4 The plaintiff discovered that the defendant had made unauthorised payments to herself during the course of her employment. These totalled $24,883.31. The first cause of action in the statement of claim is for money had and received. The second cause of action is for breach of fiduciary duty. If this court has jurisdiction, the plaintiff has shown that the defendant does not have a defence to the allegations in the first and second causes of action.

5 The jurisdiction question is whether the claims by the plaintiff are within the exclusive jurisdiction of the Employment Relations Authority under the Employment Relations Act 2000. The Employment Relations Authority was established under s156 of the Employment Relations Act. Section 157 provides the role of the Authority:

157 Role of Authority

• (1) The Authority is an investigative body that has the role of resolving employment relationship problems by establishing the facts andmaking a determination according to the substantial merits of the case, without regard to technicalities.

• (2) The Authority must, in carrying out its role,—

  • (a) comply with the principles of natural justice; and

  • (b) aim to promote good faith behaviour; and

  • (c) support successful employment relationships; and

  • (d) generally further the object of this Act.

• (3) The Authority must act as it thinks fit in equity and good conscience, but may not do anything that is inconsistent with —

  • (a) this Act; or

  • (b) any regulations made under this Act; or

  • (c) the relevant employment agreement.

6 It is significant that the Authority is an investigative body that decides cases according to their substantial merits without regard to technicalities. It must act as it thinks fit in equity and good conscience, but may not do anything that is inconsistent with the act, regulations or a relevant employment agreement.

7 Proceedings before ordinary civil courts are adversarial. While civil courts have an equitable jurisdiction, 1 that jurisdiction is not the same as the direction to the Employment Relations Authority to act as it thinks fit in equity and good conscience. Parliament has required that the Employment Relations Authority adopt a distinctive approach to deciding cases that come before it. Because it is required to adopt such a distinctive approach, it is not surprising to find that the Employment Relations Authority has an exclusive jurisdiction. Without an exclusive jurisdiction, cases would be decided differently according to whether they were heard by the Authority or by a court. Section 161 provides:

161 Jurisdiction

• (1) The Authority has exclusive jurisdiction to make determinations about employment relationship problems generally, including —

  • (a) disputes about the interpretation, application, or operation of an employment agreement:

  • (b) matters related to a breach of an employment agreement:

  • (c) matters about whether a person is an employee (not being matters arising on an application under section 6(5)):

  • (ca) facilitating bargaining under sections 50A to 50I:

  • (cb) fixing the provisions of a collective agreement under section 50J:

  • (cc) determining whether an employer has complied with section 69AAE:

  • (d) matters alleged to arise under section 68 because a party to an individual employment agreement has bargained unfairly:

  • (da) investigating bargaining under section 69O and, if necessary, determining redundancy entitlements under that section:

  • (e) personal grievances:

  • (f) matters about whether the good faith obligations imposed by this Act (including those that apply where a union and an employer bargain for a collective agreement) have been complied with in a particular case:

  • (g) matters about the recovery of wages or other money under section 131:

  • (h) matters about whether the rules of a union, or of an incorporated society that wishes to register as a union, comply with the provisions of this Act:

  • (i) matters about whether an incorporated society is entitled to register under this Act as a union or is entitled to continue to be so registered:

  • (j) matters about whether a person is entitled to be a member of a union:

  • (k) matters related to a failure by a union to comply with its rules:

  • (l) any proceedings related to a strike or lockout (other than those founded on tort or seeking an injunction):

  • (m) actions for the recovery of penalties —

    • (i) under this Act for a breach of an employment agreement:

    • (ii) under this Act for a breach of any provision of this Act (being a provision that provides for the penalty to be recovered in the Authority):

    • (iii) under section 76 of the Holidays Act 2003:

    • (iv) under section 10 of the Minimum Wage Act 1983:

    • (v) under section 13 of the Wages Protection Act 1983:

  • (n) compliance orders under section 137:

  • (o) objections under section 225 to demand notices:

  • (p) orders for interim reinstatement under section 127:

  • (q) actions of the type referred to in section 228(1):

  • (r) any other action (being an action that is not directly within the jurisdiction of the Court) arising from or related to the employment relationship or related to the interpretation of this Act (other than an action founded on tort):

  • (s) determinations under such other powers and functions as are conferred on it by this or any other Act.

• (2) Except as provided in subsection (1)(ca), ( cb), (d), (da), and (f), the Authority does not have jurisdiction to make a determination about any matter relating to —

  • (a) bargaining; or

  • (b) the fixing of new terms and conditions of employment.

• (3) Except as provided in this Act, no court has jurisdiction in relation to any matter that, under subsection (1), is within the exclusive jurisdiction of the Authority.

8 Under s 4(2), an employment relationship includes a relationship between an employer and employee employed by that employer Under s 5, an “employment relationship problem” is defined:

5 Interpretation

In this Act, unless the context otherwise requires,—

employment relationship problem

includes a personal grievance, a dispute, and any other problem relating to or arising out of an employment relationship, but does not include any problem with the fixing of new terms and conditions of employment

9 After providing that the Authority has exclusive jurisdiction for determinations about employment relationships generally, s 161(1) lists, non-exhaustively, a number of matters included within the general exclusive jurisdiction. The following are of particular importance in this case:

• [a] Disputes founded on the interpretation, implication or operation of an employment agreement.

• [b] Matters relating to the breach of an employment agreement.

• [f] Matters about whether the good faith obligations imposed by this Act (including those that apply where a union and an employer bargain for a collective agreement) have been complied with in a particular case.

• [r] Any other action (being an action that is not directly within the jurisdiction of the court) arising from or related to the employment relationship or related to the interpretation of this Act (other than an action founded on tort) …

10 At first sight, the plaintiff's claim is that it has lost money in circumstances where it had employed the defendant to handle its accounts, and...