Brian Moxey v Westminster Pacific

 
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[2012] NZEmpC 16

IN THE EMPLOYMENT COURT AUCKLAND

ARC 87/11

In the Matter of an application for compliance order

BETWEEN
Brian Moxey
Plaintiff
and
Westminster Pacific (NZ) Limited
Defendant
Counsel:

Carl Blake, counsel for plaintiff

No appearance for the defendant

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.

Held: Westminster had been properly served with notice of the application and had failed to appear. The compliance order satisfied all the statutory requirements and Westminster on the evidence had failed to comply. There was limited evidence as to the company's financial position. It had taken no steps to explain or justify its failure to comply.

The suite of sanctions available to the Court reinforced the seriousness with which a refusal to comply with Authority orders was to be treated. Failure to comply with orders of the Authority raised public interest considerations and brought the administration of justice into disrepute. Parliament had determined, by both setting the maximum fine at $40,000 and allowing it to be combined with other sanctions in a suite of other measures, that refusals to comply with Authority orders were to be treated seriously ( Ingham v August Models and Talent Ltd).

In determining the appropriate quantum, the following considerations were relevant:

  • • Westminster's deliberate flouting of the Authority's orders;

  • • its ongoing avoidance of its obligations to M;

  • • its situation, as far as could be determined;

  • • fines imposed in analogous cases;

  • • Westminster's ongoing and lengthy failure to meet its legal obligations to M.

In August Models, the Chief Judge fined the defendant $10,000, noting that it was a first offender. The Court was not referred to any case in which a fine of $40,000 had been imposed and it was not appropriate in the circumstances of this case, including the fact that the defendant appeared to be a first offender.

Order that a fine of $8,000 be paid. Half of the penalty recovered was to be paid to M. Costs of $800 and filing fee to be paid.

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...

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