It is a good idea to contact the Ombudsman first for help in encouraging the parties to respect the agreement before going to the ERDF or the labour court. As noted above, the agreement also provided that Mr. L. could apply for future positions. There was evidence that he had done so no less than four times, all without success. Sky City submitted that there had been no infringement because the clause only meant what it said, namely that Mr. L was able to apply for future positions and that he had done so. Sky City submitted that Mr. L.
had only been able to complete a job application and that, at that time, Sky City`s engagement had ended. The Labour Tribunal rejected this argument and indicated that the clause would have been totally unnecessary if it had been. It does not follow, however, that Mr. L. was successful in filing an application. The Labour Tribunal found that the inclusion of the “no” to the personnel issue in the staff computer system, which Sky City recognized as a factor in the unsuccessful subsequent applications of Mr. L. to the job, was also contrary to the labour agreement. Sky City and one of its employees (one Mr. L) were involved in a dispute.
They agreed to refer the dispute to mediation, after which a transaction agreement was signed. The agreement provided, among other things, that Mr. L. would resign from that date and that neither party would make any derogatory comments about the other party. The corresponding clause further states that “this does not include derogatory comments about past, existing or potential employees, potential employers, internal and external stakeholders or the general public… If you have a legal right, you can take the case to the ERDF or the labour court. These institutions may order you to retry mediation if they feel that you should be able to reach an agreement. A recommendation is not an end-of-the-table. This could mean that the problem is resolved quickly and saves time and costs. There is no question of replacing your right to reach an agreement between you or letting the ERDF decide your employment problem. The parties will keep confidential these conditions, all the issues discussed in the mediation and the circumstances that led to the conclusion of this agreement.
4.3 If the contracting parties have agreed that a person should be appointed as a mediator, that agreement will be treated as an agreement to appoint a mediator for all purposes. Such a candidate can only be appointed as a mediator by the NZDRC in accordance with rules 4.9-4.10. The NZDRC may refuse to nominate a candidate if it believes, at its sole discretion, that it is not appropriate, independent or impartial. 10.1 In the absence of an agreement within 30 days of the start of the agreement, which definitively affect all contentious issues, each party may refer the dispute to arbitration proceedings for a final and binding conclusion, in accordance with the NZDRC`s arbitration rules.