Sam's Fukuyama Food Services Limited v Zhang
[2011] NZCA 464
•19 September 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA325/2011 [2011] NZCA 464 |
| BETWEEN SAM'S FUKUYAMA FOOD SERVICES LIMITED |
| AND JIAN ZHANG |
| Hearing: 13 September 2011 |
| Court: O'Regan P, Harrison and Stevens JJ |
| Counsel: S C Dench for Applicant |
| Judgment: 19 September 2011 at 3.00 pm |
JUDGMENT OF THE COURT
Leave to appeal is granted on the following question of law:
Whether the Judge in the Employment Court failed to exercise the discretionary power in s 128(3) of the Employment Relations Act 2000 when awarding compensation for remuneration lost by the employee and, if so, what is the appropriate sum payable to the employee in the exercise of such discretion?
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REASONS OF THE COURT
(Given by Stevens J)
Introduction
At the conclusion of the hearing of the application for leave to argue a question of law under s 214 of the Employment Relations Act 2000 (the Act), we advised the parties that we proposed to grant leave on the question of law set out above.
In order to minimise the costs to the parties in respect of the appeal, counsel agreed that the substantive appeal could be dealt with on the papers. To assist the Court further, and to provide any submissions additional to those canvassed in argument at the hearing, counsel will each provide further written submissions of not more than three pages. Such submissions will be directed to the factors that ought to be considered in the exercise of the discretion under s 128(3) of the Act to award a sum greater than an amount equal to three months ordinary time remuneration as provided in s 128(2) of the Act.
The applicant is to file and serve its submissions by 4 October 2011 with the respondent to answer by 11 October 2011. There is no provision for a reply by the applicant.
As discussed at the hearing, the parties are encouraged to endeavour to resolve their differences by agreement. But if the parties have not otherwise resolved the amount of remuneration in excess of three months ordinary time remuneration payable to the applicant, a judgment fixing the amount payable will be issued by the Court.
Solicitors:
M J Burney, Auckland for Applicant
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