Brian Moxey v Westminster Pacific

• Jurisdiction: New Zealand
• Judge: Christina Inglis
• Judgment Date: 08 February 2012
• Court: Employment Court
• Docket Number: ARC 87/11
• Date: 08 February 2012

In the Matter of an application for compliance order

BETWEEN

Brian Moxey

Plaintiff

and

Westminster Pacific (NZ) Limited

Defendant

[2012] NZEmpC 16

ARC 87/11

IN THE EMPLOYMENT COURT AUCKLAND

Application for orders under s140(6) Employment Relations Act 2000 (failure to comply with compliance order) — defendant had failed to comply with compliance order without explanation — plaintiff requested imposition of $40,000 — whether fine should be imposed and if so, in what amount.

Counsel:

Carl Blake, counsel for plaintiff

No appearance for the defendant

ORAL JUDGMENT OF JUDGE Christina Inglis

1 The plaintiff has applied for orders under s 140(6) of the Employment Relations Act 2000 in relation to the alleged failure of the defendant, Westminster Pacific (NZ) Ltd (WPNZ) to comply with an earlier compliance order made by the Employment Relations Authority dated 3 June 2011.

2 The plaintiff seeks orders that the defendant be fined $40,000 together with an order for costs relating to this application. The plaintiff had initially sought an order for sequestration of the defendant's property, but that was not pursued at the hearing.

3 The background to this proceeding is conveniently set out in an affidavit of Mr Moxey, filed in support of the application. The plaintiff commenced employment with WPNZ on 1 April 2008. Issues subsequently arose and he filed a grievance with the Authority claiming unjustified constructive dismissal. The Authority member determined that the plaintiff had been unjustifiably constructively dismissed following an investigation meeting which the defendant attended through Mr Mann. The Authority awarded the defendant $16,285.65 gross by way of non-payment of wages, $18,000 gross in respect of contractual notice, $4,828.97 gross in respect of accrued and annual leave entitlement and compensation of $5,000 for hurt and humiliation. 1

4 It is apparent from the plaintiff's affidavit that numerous steps were taken to extract the sums ordered by the Authority from the defendant. Several letters were sent. No payment was forthcoming. The plaintiff then applied to the Authority for a compliance order. The defendant did not attend the investigation meeting but it is clear that the defendant was aware of it. This is referred to in the Authority's determination 2 dated 3 June 2011 which records that Mr Mann, director of WPNZ, had sent an email to the Authority claiming that WPNZ had ceased trading, was to be removed from the Companies Register and that there were no funds available to WPNZ from which to make payment to Mr Moxey. The Authority Member went on to note that Mr Mann had not produced any financial evidence to support WPNZ's claims of financial inability, but that Mr Moxey had produced evidence which substantiated that any action to remove WPNZ from the Companies Register had been suspended. The Authority was satisfied that the defendant had failed to comply with the terms of the Authority's order and considered it just in the circumstances to make an order requiring WPNZ to comply with the determination.

5 A compliance order was accordingly issued in relation to the awards set out in the earlier determination, together with $71.56 by way of the application fee. The Authority ordered that the defendant comply within a period of 14 days from the date of service of its determination on the defendant and drew to the defendant's

attention the strict nature of the obligation on him to comply with its orders, noting the Court's power to fine, sequester property and imprison for non-compliance

6 It is clear that the plaintiff, through his lawyer, subsequently wrote to the defendant seeking compliance with the Authority's compliance order. No response was received.

7 Where any person fails to comply with a compliance order made under s 137 (which relates to orders made by the Authority), the person affected may apply to the Court for the exercise of its powers under s 140(6). 3 Amongst other things, s 140(6) empowers the Court to order the person in default to be sentenced to imprisonment for a period not exceeding three months, to be fined a sum not exceeding $40,000 and/or to order that the property of that person in default be sequestered. Prior to exercising such power, the Court must be satisfied that the person has failed to comply with the compliance order made under s 137.

8 I am satisfied that this proceeding has been properly served on the defendant, having regard to the contents of Ms Downs' affidavit dated 19...