SAM'S FUKUYAMA FOOD SERVICES LIMITED V JIAN ZHANG COA CA325/2011
The Court granted leave to appeal on the specific question whether the Employment Court judge failed to exercise the discretion in s128(3) and directed written submissions limited to the factors relevant to awarding remuneration in excess of three months, with a timetable and process for a final determination if the...
Source-derived case information.
- Citation
- SAM'S FUKUYAMA FOOD SERVICES LIMITED V JIAN ZHANG COA CA325/2011
- Parties
- Applicant: SAM'S FUKUYAMA FOOD SERVICES LIMITED; Respondent: JIAN ZHANG
- Court
- Court of Appeal
- Jurisdiction
- New Zealand
- Judgment Date
- 19 September 2011
- Procedural Posture
- Appeal Under S214 of the Employment Relations Act 2000 / Leave to Appeal Granted; Substantive Appeal to Be Determined on the Papers With Directed Written Submissions
- Outcome
- Leave to appeal granted on the stated question of law; directions issued for written submissions and for the Court to determine amount if not agreed
- Legal Topics
- Compensation for Lost Remuneration, Discretion Under S128(3) Employment Relations Act 2000, Leave to Appeal Under S214
Source-derived case record
Summary, issues, holding and outcome
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Parties
SAM'S FUKUYAMA FOOD SERVICES LIMITED
Applicant
JIAN ZHANG
Respondent
Procedural Posture
Appeal Under S214 of the Employment Relations Act 2000 / Leave to Appeal Granted; Substantive Appeal to Be Determined on the Papers With Directed Written Submissions
Legal Issues
- 1 Whether the Employment Court judge failed to exercise the discretionary power in s128(3) of the Employment Relations Act 2000 when awarding compensation for lost remuneration
- 2 If there was a failure to exercise that discretion, what is the appropriate sum payable under s128(3)
Ratio Decidendi
The Court granted leave to appeal on the specific question whether the Employment Court judge failed to exercise the discretion in s128(3) and directed written submissions limited to the factors relevant to awarding remuneration in excess of three months, with a timetable and process for a final determination if the parties do not agree.
Court Disposition
Leave to appeal granted on the stated question of law; directions issued for written submissions and for the Court to determine amount if not agreed
Orders
- Leave to appeal granted on the question whether the Employment Court judge failed to exercise the discretionary power in s128(3) of the Employment Relations Act 2000 and, if so, the appropriate sum payable
- Applicant to file and serve written submissions (maximum three pages) by 4 October 2011
Full Case Text
Judgment text and source record
1 paragraphs
SAM'S FUKUYAMA FOOD SERVICES LIMITED V JIAN ZHANG COA CA325/2011 19 September 2011IN THE COURT OF APPEAL OF NEW ZEALANDCA325/2011[2011] NZCA 464BETWEEN SAM'S FUKUYAMA FOOD SERVICESLIMITEDApplicantAND JIAN ZHANGRespondentHearing: 13 September 2011Court: O'Regan P, Harrison and Stevens JJCounsel: S C Dench for ApplicantG M Pollak for RespondentJudgment: 19 September 2011 at 3:00 PMJUDGMENT OF THE COURTLeave 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?____________________________________________________________________REASONS OF THE COURT(Given by Stevens J)Introduction[1] 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), weadvised the parties that we proposed to grant leave on the question of law set out above.[2] 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.[3] 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.[4] 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