Appellate judgments 2017

Supreme Court

[2017] NZSC 191 Lowe v Director-General of Health & CE of Capital and Coast DHB [PDF, 262 KB]APPLICATION FOR RECALL – judgment was not contrary to concession made by the parties – application dismissed.

[2017] NZSC 139 Brown and Sycamore v NZ Basing Ltd [PDF, 332 KB] DISCRIMINATION – CONFLICT OF LAWS – employer was a company based in Hong Kong and contract specified Hong Kong law applies – whether anti-age discrimination laws apply to New Zealand employees – MINORITY JUDGMENT - the right not to be discriminated against is a legislative requirement not necessarily linked to an employment agreement – Employment Court was correct to find that employees that work in New Zealand are covered by protection against age discrimination – appeal allowed – MAJORITY JUDGMENT – employment law issui generis in nature so party choice of law is not relevant – employees worked in New Zealand – Employment Court was correct to find that employees were covered by protection against age discrimination – appeal allowed.

[2017] NZSC 135 Affco v New Zealand Meat Workers & Related Trade Union Incorporated [PDF, 336 KB] SEASONAL WORKERS – LOCKOUT - whether workers were employees during off-season – collective agreements were clear that workers were not continuously employed – workers were not “persons intending to work” as they could not be described as having been offered and accepted work as employees during off-season – workers are not employees during off-season under s 6 definition – definition of employee under s 82 regarding lockouts is broader – continuing obligations between the parties during off-season mean that workers are employees for the purposes of s 82 – Court of Appeal was correct that lockout was unlawful – appeal dismissed.

[2017] NZSC 115 Lowe v Director-General of Health, Mimistry of Health and CE Capital and Coast District Health Board [PDF, 470 KB]NATURE OF EMPLOYMENT – HOMEWORKER – whether disability relief carer is a homeworker and therefore an employee of the Ministry of Health – MAJORITY JUDGMENTS – whether relief carer was engaged by Ministry of Health – engaged has broad meaning – Ministry of Health did not have any role in selecting relief carer – relief carer was not engaged – Court of Appeal was right to find that relief carer was not a homeworker – appeal dismissed – MINORITY JUDGMENT – relief carer did work for the benefit of the Ministry of Health – allocation of carer support is done by agents of Ministry of Health – relief carer was contracted by the Ministry of Health – relief carer was a homeworker and thus an employee of the Ministry of Health – appeal would have been allowed.

[2017] NZSC 111 NZ Airline Pilots' Assoc Inc v Air NZ Ltd [PDF, 617 KB] CONSTRUCTION OF COLLECTIVE AGREEMENT – JURISDICTION – MAJORITY JUDGMENT - whether Court of Appeal had jurisdiction to consider correct construction of collective agreement – s 214 limits right of appeal to interpretation of collective agreement – historical background examined – Court of Appeal has jurisdiction to consider errors in principles of interpretation – Employment Court incorrectly took into account subjective intention of the parties during negotiation – Court of Appeal did not exceed jurisdiction – appeal dismissed – MINORITY JUDGMENT – Court of Appeal does have jurisdiction to consider principles of interpretation – no error in principle was made by the Employment Court – appeal would have been allowed.

[2017] NZSC 59 ASG v Harlene Hayne, Vice-Chancellor of the University of Otago [PDF, 210 KB]  Media release(external link) NON-PUBLICATION ORDER – whether non-publication order was breached – employee’s guilty plea was covered by non-publication order but employer’s agent was present in courtroom and informed the employer – whether agent communicating information to employer was “publication” under Criminal Procedure Act 2011 – publication is only where it goes to the public or a section of the public at large – employer had legitimate interest in the information  because of health and safety obligations – communication of information to the employer was not publication – Court of Appeal was correct to uphold Employment Court decision.

[2017] NZSC 51 - B v ALA [PDF, 75 KB] APPLICATION FOR LEAVE TO APPEAL – application was out of time but extension granted – no matters of general or public importance – application declined.

[2017] NZSC 12 Brown and Sycamore v NZ Basing Ltd [PDF, 9.3 KB] APPLICATION FOR LEAVE TO APPEAL GRANTED – whether age discrimination provisions apply to the employment agreement between the parties.

[2017] NZSC 30 Affco New Zealand Ltd v New Zealand Meat Workers and Related Trades Union Inc & Others [PDF, 103 KB]APPLICATION FOR LEAVE TO APPEAL GRANTED – whether employer was in breach of lockout restrictions in Employment Relations Act 2000 for seasonal workers.


Court of Appeal

[2017] NZCA 559 ASB Bank LTD v Andre Nel [PDF, 165 KB] APPLICATIONS FOR LEAVE TO APPEAL – not appropriate to decide test for disparity in strike-out decision – no important question of law arises in regard to disclosure decision – applications declined.

[2017] NZCA 322 Heather Fuimaono And Anor v Leeanne Houia [PDF, 78 KB] APPLICATION FOR LEAVE TO APPEAL – no serious question of law – application declined. [PDF, 78 KB]

[2017] NZCA 477 Corrections Assoc of NZ Inc v Chief Executive of the Department of Corrections [PDF, 146 KB] APPLICATION FOR LEAVE TO APPEAL GRANTED – whether removing work category amounts to variation of collective agreement.

[2017] NZCA 453 Affco NZ Ltd v NZMWRTU Inc [PDF, 93 KB] APPLICATION FOR LEAVE TO APPEAL GRANTED – whether entitlements arise from unlawful lockout for seasonal workers – other questions of law are not seriously arguable.

[2017] NZCA 434 Broadspectrum (NZ) Ltd v Nathan [PDF, 229 KB] APPLICATION FOR STAY – Employment Court awarded a penalty for employer breach in failing to reinstate employee as ordered – whether finding of breach should be stayed pending appeal – no strong case on appeal – balance of convenience favours rejecting stay – application declined. 

[2017] NZCA 266 Matsuoka v LSG Sky Chefs NZ Ltd [PDF, 93 KB] APPLICATION FOR LEAVE TO APPEAL – no question of law – application declined. [PDF, 93 KB]

[2017] NZCA 247 Waikato District Health Board v New Zealand Nurses Organisation [PDF, 275 KB]REHEARING – whether Employment Court was correct to grant an application for a rehearing– Employment Court followed the correct test on the question of the application for a rehearing -  test was applied correctly – Employment Court could also have ordered a recall – appeal dismissed.

[2017] NZCA 202 Broadspectrum (NZ) Ltd v Nathan [PDF, 86 KB] APPLICATION FOR LEAVE TO APPEAL – no important questions of law – application declined.

[2017] NZCA 169 Brill v Labour Inspector [PDF, 298 KB] Employment Law – Personal liability of employer company officers, directors or agents – s 234 of the Employment Relations Act 2000. What threshold must the Labour Inspector meet in order to obtain authorisation to proceed against an officer, director or agent under s 234(2)?  Whether the Labour Inspector must prove an officer, director or agent of a company knew the company was under-paying the employee, or whether it is sufficient he or she authorised the payments in question.
Held: Appeal allowed.  The Labour Inspector must satisfy the Employment Relations Authority that there is a tenable cause of action in order to proceed under s 234(2).  The Labour Inspector must prove the officer, director or agent knew the payment was in default of the company’s statutory obligations to pursue him or her personally.  Such knowledge may be proved by inference from conduct."

[2017] NZCA 153 Hay v LSG Sky Chefs NZ Ltd and Anor [PDF, 119 KB] "Application for leave declined. Employment law. Application for leave. Joinder. Litigation funding. Costs. Following a successful personal grievance claim in the Employment Court, an order was made joining the litigation funder and its de facto director to the costs proceedings.  The director applied for leave to appeal to this Court.
Whether leave should be granted on a question of law that, by reason of general or public importance or for any other reason, ought to be submitted to this Court for decision?
Held: the proposed question of law  that the Employment Court Judge erred because this Court in Kidd v v Equity Realty (1995) Ltd imposed a requirement that actual insolvency of the principal party is prerequisite to joinder  does not limit the Employment Court’s powers and the costs issue does not raise a question of sufficient importance to meet the leave threshold; the power to order joinder in the costs context is a fact-specific assessment; costs on the unsuccessful application are increased by 50 per cent to reflect the volume of material, change of position and general complexity."

[2017] NZCA 123 AFFCO NZ Ltd v Employment Court & NZ Meat Workers and Related Trades Union Incorporated [PDF, 232 KB]  "Summary: Application to strike out; review of decision of the Employment Court; privative clause. Whether previous Court of Appeal authority on the scope of this Court’s judicial review jurisdiction under the Employment Relations Act 2000 should be revisited in light of the New Zealand Bill of Rights Act 1990 to allow review for breach of natural justice. Held: application for judicial review dismissed.  No inconsistency between s 27 of the New Zealand Bill of Rights Act and previous authority from this Court on its judicial review scope.  Even if it was inconsistent, the limited scope of jurisdiction to review would be a reasonable limit on the protected right.  This Court therefore has no jurisdiction to review the Employment Court’s decision.  Proceedings might also be struck out as an abuse of process." 

[2017] NZCA 34 Farrimond v Caffe Coffee (NZ) Ltd [PDF, 198 KB]  Application for leave to appeal declined. Order as to costs. Civil practice and procedure: leave to appeal. Whether leave to appeal from costs decision of Employment Court should be granted? Held; costs awards are at discretion of the court;  no errors of law established that would entitle the Court to grant leave to appeal.

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