Employer ERA Costs

The employer's fee

As an example we refer to DEVI v ECLIPSE RECRUITMENT LIMITED [2021] NZERA 42, where the final invoice to the employer was $35,396.14. The employer through its representative claimed full reimbursement of this amount, but only $6,500 was awarded against the unsuccessful party. I am only going to only briefly discuss what is in the Authority costs determination on this point:

• It was not accepted that costs for mediation be awarded.
• It was not accepted that costs on costs be awarded. This included costs for the representatives reading the ERA substantive determination and undertaking legal research on the issue of costs.
• The uplift in costs on top of the daily tariff was to the amount of an extra $2,000 on the basis of a rejection of a Calderbank offer and the investigation meeting going over time for the first day.

The representatives for the employer had charged hourly rates of $425.00, $350.00 and $275.00 respectively where none of these representatives were lawyers. It was expected that $35,396.14 would be awarded in full which included costs of mediation (which is not part of an Authority hearing), costs on costs, such as reading the ERA decision, and researching the law on costs before submitting on costs.

The Authority despite being constricted to be subject to the actual laws on costs, declared that only $25,000 of the over $35,000 claimed was actually attributable to Employment Relations Authority related expenses. The outcome was decided based on PBO Limited (formerly Rush Security Limited) v Da Cruz [2005] 1 ERNZ 8080 which is described and readily available for public reading under the Employment Relations Authority's Practice Note on costs.

$6,500 was ordered, not $35,396.14. An Authority determination will never tell whether a costs award is actually paid.

Here we go again

Another example we refer to KIM v MEGA PAINTING LIMITED [2021] NZERA 125, where the employer was claiming costs of $9,131 plus disbursements of $175.06. The company through its representative claimed full reimbursement of costs. Following my writing submissions for the claimant employee to hand up to the Employment Relations Authority Member, the claimant employee was only ordered to pay a total of $2,590. No surprise to us here:

• It was not accepted that costs for mediation be awarded.
• It was not accepted that the employee pay an Employment Relations Authority filing fee that the employer never paid.
• On a principled approach, and on the basis of this involving a part day to hear a preliminary issue, only part of a day of the first day according to the daily tariff was awarded.

$2,590 was ordered, not the over $9,000 that was sought by the company. An Authority determination will never tell whether a costs award is actually paid.