Stay application to the Employment Court goes sideways – by Lawrence Anderson

A personal grievance is heard by the Employment Relations Authority. Sometimes the Authority finds the grievance is established and there are remedies ordered. The employer then has the option to apply to the Employment Court to challenge the Authority's determination, usually through its counsel, along with an application to stay the execution of the Authority's orders. This is what has happened involving the matters of David Gray (employee) and Matthew Lai (employer). https://www.employmentcourt.govt.nz/assets/Documents/Decisions/2023-NZEmpC-5 8-Lai-v-Gray-Stay.pdf What is required is an application that is filed in the Court and then served on the Defendant. That application must contain particulars and grounds to make the interlocutory application, and an affidavit in support of that should be filed. In this case, counsel for the employer did not specify grounds for the application in its notice. It also attached an unsworn affidavit. Then, when it came for counsel to give submissions, despite having an extension to do so, no submissions were filed by counsel. Said application for stay was unsuccessful and dismissed. The pattern emerges from counsel having previously sought costs against the employee for the wrong company being sued originally. Counsel did not provide the Authority with an invoice to demonstrate that the employer had incurred costs. https://www.employment.govt.nz/assets/elawpdf/2022/2022-NZERA-200.pdf These are examples of how attention to detail is critical in submissions to the Court and Authority.

The principles applying to an application for a stay are well established. A challenge does not operate as a stay of the execution of a determination. The overarching consideration is whether granting a stay will be in the interests of justice. A range of factors is usually taken into account in that assessment including:

(a) Whether the challenge will be rendered ineffectual if the stay is not granted.

(b) Whether the challenge is brought and pursued in good faith.

(c) Whether the successful party at first instance will be injuriously affected by a stay.

(d) The extent to which a stay would impact on third parties.

(e) The novelty and/or importance of the question involved.

(f) The public interest in the proceeding.

(g) The overall balance of convenience.

UPDATE, 23 April: We understand the practitioner is currently before the Lawyers and Conveyancers Disciplinary Tribunal on three unrelated matters: Lawyer allegedly borrowed up to $150,000 from man’s bank account while he was behind bars - NZ Herald

UPDATE, 12 May: Last week the practitioner was found by the Lawyers and Conveyancers Disciplinary Tribunal to have engaged in disgraceful and dishonorable conduct in relation to a family violence (criminal) matter, and negligence or incompetence in relation to an employment matter. Wellington Standards Committee 2 v O'Connor [2023] NZLCDT 18 (8 May 2023) (nzlii.org)