Appellate judgments 2011

Supreme Court

[2011] NZSC 218 CA780/2009 Parker v Silver Fern Farms Ltd [PDF, 32 KB] Leave to appeal refused, 28 May 2010. Employment Court had evidential basis for its findings- one proposed question had no general significance- proposed questions can be explored in plaintiff's separate judicial review proceedings.

[2011] NZSC 59 SC 33/2011 Open Country Cheese Company Ltd v New Zealand Dairy Workers' Union Inc [PDF, 50 KB] Leave to appeal dismissed, 2 June 2011. Interpretation of s 97(2) and employment or engagement of another person to perform work of striking or locked out employees. Use of the persons employed critical- not their legal relationship to company. Reasoning of the Court of Appeal endorsed.

Court of Appeal

[2011] NZCA 610 CA386/2011 Katz v Mana Coach Services Ltd [PDF, 115 KB] Leave to appeal denied, 2 December 2011. Majority (Ellen France and Arnold JJ): Court of Appeal had previously stated the test for common law indemnification which was applied by Employment Court and, on the facts, the Court's conclusion was correct. Glazebrook J would also dismiss application but for different reasons, specifically, public policy prevented indemnification where employee was guilty of criminal offence.

[2011] NZCA 609 CA576/2011 New Zealand Meat Workesr & Related Trades Union Inc v AFFCO New Zealand Ltd [PDF, 96 KB] Leave to appeal denied, 2 December 2011. No issue of sufficient general or public importance to grant leave. Circumstances of the case were unusual and fact specific. Negotiations occurred while parties were awaiting Employment Court judgment. Union members agreed to return to work and knew that return to work depended on different employment terms.

[2011] NZCA 608 CA325/2011 Sam's Fukuyama Food Services Ltd v Zhang [PDF, 64 KB] Appeal allowed, 5 December 2011. Employment Court did not consider section 128 of Act which provides for discretion to increase remuneration for lost wages above 3 month minimum. Employment Court failed to properly exercise that discretion. Reimbursement of 26 weeks' wages substituted.

[2011] NZCA 597 CA865/2010 OCS Ltd v Service and Food Workers Union Nga Ringa Tota Inc [PDF, 200 KB] Appeal allowed, 30 November 2011. Part 6A of Act allows certain employees to elect to transfer to the new employer when their work is contracted out or contracted to a different employer. Section 69N of Act requires redundancy entitlements for transferring employees made redundant by new employer if that section applies. Court of Appeal held that s 69N limited the right to bargain for redundancy entitlements to situations where the employment agreement failed to expressly address redundancy in any respect. In this case, the collective agreement provided for no redundancy payment and so s 69N did not apply. Employment Court wrong to find that employees could bargain for other redundancy entitlements.

[2011] NZCA 595 CA439/2011 New Zealand Professional Firefighters Union v New Zealand Fire Service Commission [PDF, 229 KB] Leave to appeal granted on two questions of law relating to whether the Employment Court had power by compliance order enforcing a Bargaining Process Agreement to delay strike action and whether the Court had the power to prevent strike action by other means, 29 November 2011. Appeal allowed and both questions answered negatively. Inconsistent with contracting out provision (s 238), s 85 and the scheme of Act to restrain a lawful strike by compliance order or other means.

[2011] NZCA 571 CA40/2009 New Zealand Tramways and Public Transport Employees Union Inc v Mana Coach Services Ltd [PDF, 285 KB] Appeal allowed, 21 November 2011. Employment Court erred in deciding that when union called off strike in bad faith employees were not entitled to wages for strike period because statutory power to act in equity and good conscience cannot be used to deny an employee’s contractual and statutory right to wages. Case remanded to consider whether bad faith can operate in some way other than through equity and good conscience to disentitle employees to wages for strike period.

[2011] NZCA 488 CA243/2011 Air Nelson Ltd v C [PDF, 106 KB] Leave to appeal denied, 23 September 2011. Three proposed questions of law were really questions of fact and not appealable.

[2011] NZCA 464 CA325/2011 Sam's Fukuyama Food Services Ltd v Zhang [PDF, 52 KB] Leave to appeal granted on exercise of discretion under s 128(3) of Act to award compensation for loss of remuneration, 19 September 2011.

[2011] NZCA 431 CA385/2011 Service and Food Workers Union Nga Ringa Tota Inc v Cerebos Greggs Ltd [PDF, 38 KB] Leave to appeal granted, 31 August 2011. Are qualifying employees entitled to extra week's leave in addition to statutory minimum of four weeks.

[2011] NZCA 299 CA19/2011 Air New Zealand Ltd v Wulff [PDF, 82 KB] Leave to appeal refused, 28 June 2011. Both proposed questions of law turn on factual findings and do not raise questions of law under s 214(3) of ERA.

[2011] NZCA 286 CA305/2011 Chief Executive of Unitec Institute of Technology v Tertiary Education Union [PDF, 133 KB] Appeal dismissed, 22 June 2011. Employment Court decision endorsed. Negative ballot under s 47(6) ERA terminates bargaining. This interpretation not inconsistent with good faith or promotion of collective bargaining.

[2011] NZCA 208 CA147/2011 Clifford Lamar Ltd v Gyenge [PDF, 58 KB] Leave to appeal refused, 23 May 2011. No question of law presented. Claim that the plaintiff was not given fair hearing without foundation.

[2011] NZCA 177 CA43/2011 New Zealand Fire Service Commission v McCulloch [PDF, 111 KB] Leave to appeal denied, 10 May 2011. Employment Court correct to conclude that Union ban on acting up was strike action and torts alleged by Commission resulted from or were related to this strike action.

[2011] NZCA 56 CA687/2009 New Zealand Dairy Workers' Union Inc v Open Country Cheese Company Ltd [PDF, 142 KB] Appeal allowed, 9 March 2011. Employment Court incorrect in finding that the appellant did not breach s 97 of the Employment Relations Act 2000 by using the services of Dairy Company employees during a lawful strike.

[2011] NZCA 30 Maori Television Service v Mercer [PDF, 93 KB] Leave to appeal dismissed, 22 February 2011. Proposed questions either questions of fact or not of public importance.

[2011] NZCA 14 CA405/2010 Idea Services Limited v Dickson [PDF, 161 KB] Court of Appeal concurred with Employment Court’s findings that firstly, sleepovers do constitute “work” under s 6 of the Minimum Wage Act 1983 and that secondly, the minimum rate applies to each and every hour worked, 17 February 2011.

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