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A claim for costs following an unsuccessful personal grievance claim by Eugene Duhovnikoff BA/LLB

The legal position could be best illustrated by the 2014 Employment Relation Authority decision's In Fench v McAra Air Conditioning Limited [1] where it was held that:

"Litigation is a process with attendant risks and parties should not undertake litigation without the clear understanding that, in the normal course of events, if they are unsuccessful, they will be asked to contribute to the costs of the successful party."[2]

As to the approach taken by the Authority in that case: it preferred to apply the daily tariff as a starting point and either add to or subtract from the daily tariff as the circumstances dictate.

The decision illuminates the fact that if one is to start a personal grievance matter he or she should be ready to contribute to the cost of their employer if unsuccessful. As for the calderbank offers made by successful parties where they are not accepted by the unsuccessful party during the course of personal grievance proceedings the Employment Relations Authority has a discretion, to take account of calderbank offers. Also, the Authority has an obligation to consider the means of an unsuccessful party before making an award of costs. [3]

 

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[1] [2014] NZERA Auckland 127 5424627.

[2] Ibid at para 9.

[3]Tomo v Checkmate Precision Cutting Tools Limited [2014] NZERA Auckland 122 5307295.

Reeves/Duhovnikoff & Associates Ltd. 2017

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