ERROL HARRISON WADE v HUME PACK-N-COOL Ltd NZEmpC AK

• Jurisdiction: New Zealand
• Judge: GL Colgan
• Judgment Date: 24 April 2012
• Court: Employment Court
• Docket Number: ARC 2/12
• Date: 24 April 2012

IN THE MATTER OF a challenge to a determination of the Employment Relations Authority

BETWEEN

Errol Harrison Wade

Plaintiff

and

Hume Pack-N-Cool Limited

Defendant

[2012] NZEmpC 64

ARC 2/12

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

Application to dismiss plaintiff's challenge to an Employment Relations Authority determination which refused to order a reinvestigation of the parties' settlement — plaintiff received $40,000 in settlement of employment dispute — plaintiff brought unsuccessful proceedings in Authority alleging settlement was for $70,000 and sought compliance order for alleged debt — settlement not certified under s149 Employment Relations Act 2006 (“ERA”)(settlements)— application to reopen investigation to claim balance of alleged settlement on basis defendant's witnesses perjured themselves — whether Authority had jurisdiction to enforce payment of an employment associated debt under s137 ERA (power of Authority to order compliance).

Appearances:

Plaintiff in person

Michael Sharp, counsel for defendant

JUDGMENT OF CHIEF JUDGE GL Colgan

1 The defendant applies to dismiss Errol Wade's challenge to a determination 1 of the Employment Relations Authority as being frivolous and vexatious and an abuse of the process of the Court.

2 Although this case has been before the Court previously, that was about another issue and so it is necessary to summarise the relevant events for the purpose of this judgment.

3 On 9 March 2004, the defendant paid the plaintiff the sum of $40,000 (less tax) in settlement of disputes that had arisen between them in their employment relationship. There was little or no documentation evidencing this agreement and it was not the subject of the Mediation Service certification process set out in s 149 of the Employment Relations Act 2000 (the Act). Mr Wade ceased his employment

with the company in 2005. Almost a year and a half after the March 2004 payment, Mr Wade notified the defendant of a further claim. This asserted that the 9 March 2004 settlement had been for the sum of $70,000 and so had been short-paid

$30,000. Hume Pak-N-Cool Limited (Hume) did not accept that further claim and Mr Wade issued proceedings in the Employment Relations Authority for a compliance order requiring $30,000, being the balance allegedly owed under the agreement, to be paid to him by his former employer.

4 The Authority determined this claim on 16 October 2007, 2 deciding that the parties' agreement had been for the sum of $40,000 so that no further money was payable by the defendant to the plaintiff.

5 Mr Wade challenged that determination in this Court, although these proceedings were discontinued by him on 6 August 2008. In 2011, he attempted to set aside the discontinuance but his application to do so was dismissed by a judgment of this Court issued on 27 May 2011. 3

6 Mr Wade subsequently sought leave to appeal to the Court of Appeal against the Employment Court's judgment. The Court of Appeal refused Mr Wade's application for leave in a judgment issued on 29 August 2011. 4

7 Mr Wade then issued further proceedings in the Employment Relations Authority applying to reopen its original investigation of his claim for the balance of the alleged settlement proceeds. His ground for doing so was that the company's witnesses had perjured themselves at the original investigation meeting about the appropriateness of Mr Wade's use of company paid petrol for his own car.

8 This led to the Authority's determination (on the papers) from which this is a challenge. That determination was issued on 22 December 2011.

9 As I alerted the parties to several weeks ago, I considered that there might be a fundamental jurisdictional problem with the Authority proceedings. I have now

heard submissions on this point and confirm my preliminary view that there was no jurisdiction for the Authority to have granted Mr Wade the remedy he sought, even if it may have been able to investigate his employment relationship problem. It would follow that all subsequent proceedings, including this challenge, may likewise have been without jurisdiction to provide the remedy sought. Because none of the lawyers originally and now involved, the Authority or the Courts appear to have identified this flaw in the case, I should set out my reasons for so concluding

10 Mr Wade originally sought from the Authority an order for compliance to enforce the payment of an employment associated debt. That was the only remedy claimed by him in the Authority. Its power to order compliance is found in s 137 of the Act. Section 137 is materially as follows:

• 137 Power of Authority to order compliance

• (1) This section applies where any person has not observed or complied with-

  • (a) any provision of-

    • (i) any employment agreement; or

    • (ii) Parts 1, 3 to 6, 6A (except subpart 2), 6B, 6C, 6D, 7, and 9; or

    • (iii) any terms of settlement or decision that section 151 provides may be enforced by compliance order; or

    • (iiia) an enforceable undertaking that section 223C(1) provides may be enforced by compliance order; or

    • (iiib) an improvement notice that section 223D(6) provides may be enforced by compliance order; or

    • (iv) a demand notice that section 225(4) provides may be enforced by compliance order; or

    • (v) sections 56, 58, 77A, and 77D of the State Sector Act 1988; or

    • (vi) Parts 6 and 7 of the State Sector Act 1988; or

    • (vii) section 11(3)(c) of the Health and Disability Services Act 1993; or

    • (viii) clauses 5 and 6 of Schedule 1 of the Broadcasting Act 1989; or

    • (ix) sections 83, 83A, and 83B of the Fire Service Act 1975; or

    • (x) clauses 18, 19, and 21 of Schedule 5 of the Accident Compensation Act 2001; or

    • (xi) Part 2A (other than section 19G) and Schedule 1A of the Health and Safety in Employment Act 1992; or

  • (b) any order, determination, direction, or requirement made or given under this Act by the Authority or a member or officer of the Authority.

• (2) Where this section applies, the Authority may, in addition to any other power it may exercise, by order require, in or in conjunction with any matter before the Authority under this Act to which that person is a party or in respect of which that person is a witness, that person to do any specified thing or to cease any specified activity, for the purpose of preventing further non-observance of or non-compliance with...