Bridget Addy v Auckland Steam 'N' Dry Limited and Graeme Stephens [2023] NZERA 568

This is a follow-on Employment Relations Authority (ERA) decision about enforcing earlier orders. It is not a re-hearing of the underlying dismissal dispute. It is about whether a compliance order should be made, and what costs should follow where payment was made late.

Background: what happened before this compliance application

The applicant had already succeeded in earlier proceedings against the respondents. The Authority refers to:

• The primary determination ([2022] NZERA 657), which ordered payments to the applicant including: $3,600 for lost wages, $8,000 compensation, and a $2,000 global penalty for various statutory breaches.
• A later costs determination ([2023] NZERA 157), which ordered costs of $4,500 (based on the daily tariff for a one-day investigation meeting).

The problem was not that the applicant had no orders. The problem was that the respondents did not pay on time, which forced the applicant to take further steps to enforce what the Authority had already ordered.

What this application was about

The applicant applied for a compliance order under s 137(1)(b) of the Employment Relations Act 2000. A compliance order is a tool the Authority can use when a person has not observed or complied with an Authority order or determination.

The Authority records that the respondents had not complied, and that the applicant commenced this proceeding on 23 February 2023. During the compliance process, the respondents made payments into the applicant's bank account, including two electronic payments in June 2023 totalling $10,000, and later payments on 31 July 2023 ($5,000) and 31 August 2023 ($3,100). By the time the Authority made this determination, the Authority was satisfied the outstanding money had been paid.

How the Authority investigated and why there was still a costs issue

The matter was dealt with "on the papers". The applicant filed submissions in August and September 2023. There was no appearance by the respondents. The Authority held a case management conference and gave the respondents opportunities and extensions to file evidence, but no response was filed.

Once the Authority confirmed all ordered monies had been paid, the Authority said it could not make a compliance order because there was nothing left to compel. However, the Authority accepted the applicant had still been put to further expense and effort to enforce the earlier orders, and that costs and reasonable expenses needed to be addressed.

What the Authority decided

• No compliance order: because the respondent had paid the ordered sums by the time of determination, the Authority made no compliance order.
• Some additional claims declined: the Authority declined to award reimbursement for counselling costs totalling $1,200, lost wages of $439.06, and a penalty under s 134A for obstructing or delaying the investigation. The Authority said that if a compliance order had been needed it may have been appropriate to consider those claims further, but it was no longer necessary and the matter needed finality.
• Filing fee reimbursement: the Authority ordered reimbursement of the filing fee of $71.55.
• Costs: the Authority ordered costs of $900, noting the application was straightforward and completed on the papers, and applying the principle that costs should be modest.

Orders made in this determination

Why this decision matters

• Enforcement has a cost: even when a party eventually pays, late payment can force the successful party to incur extra time and cost to chase compliance.
• Compliance applications can become "costs only": once payment is made, the compliance order itself may fall away, but the Authority can still deal with filing fee reimbursement and costs.
• Keep evidence of payment dates: this determination turned on when payments were made and whether anything remained unpaid.

Read the full ERA determination (embedded)

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Source: Employment Relations Authority determination hosted on determinations.era.govt.nz.