Appellate judgments 2012

Supreme Court

[2012] NZSC 69 SC 124/2011 Service & Food Workers Union Nga Ringa Tota v The persons listed in schedule A [PDF, 137 KB] Appeal allowed, 9 August 2012. Upheld the CA's point that the employees could not bargain for redundancy compensation under s 69N because their collective agreement expressly excluded "redundancy payments". On the second issue of the effect of the employment agreement in this case, the SC reversed the CA’s finding that the exclusion of redundancy payments excluded the right to bargain for any other form of redundancy entitlement (reinstating the EC). The expression "redundancy entitlements" is defined in s 69B to include redundancy compensation, demonstrating that redundancy entitlements can take forms other than payment of monetary compensation (such as a right to retraining).

[2012] NZSC 8 SC124/2011 Service and Food Workers Union Nga Ringa Tota v The persons listed in schedule A [PDF, 10 KB] Leave to appeal is granted, 28 February 2012. The approved questions are whether, and if so to what extent, the multi-employer collective employment agreement precludes the second appellants from bargaining for redundancy entitlements under s 69N of the Employment Relations Act 2000.

Court of Appeal

[2012] NZCA 508 CA414/2012 R A Moodie v The Employment Court & Anor [PDF, 147 KB] Application for judicial review of the Employment Court's decision struck out, 7 November 2012. Unsuccessful application for extension of time to appeal against the Employment Court's decision. Applicant ordered to pay the respondent's costs for a standard application for leave to appeal plus usual disbursements.

[2012] NZCA 481 CA327/2011 Postal Workers Union v NZ Post [PDF, 141 KB] Judgment setting aside the decisions of the Employment Court and Employment Relations Authority in this matter, 30 October 2012. The Court of Appeal was satisfied that the Employment Court was in error in concluding there was an onus on the employee to establish the pay her or she would otherwise received on the day in question. Rather, the onus fell on the employer to meet the statutory obligation to pay the minimum entitlement on the day in question. The Court concluded that interpreted in accordance with the purpose of the Act, s 9 required the employer first to establish or attempt to establish the amount of unrostered overtime that would otherwise have been received by the employee under s 9(1)(b)(ii). If that were not possible, then the employer was obliged to apply the averaging formula under s 9(3). The respondent is ordered to pay one set of costs to the appellants as for a standard appeal on a band A basis with usual disbursements.

[2012] NZCA 456 CA424/2012 New Zealand Cards Limited v Ramsay [PDF, 128 KB] The application to review the decision of the Registrar declining to dispense with security for costs is dismissed, 5 October 2012.

[2012] NZCA 393 CA667/2008 NZ Tramways v Mana Coach Services [PDF, 57 KB] Application for costs on the application for leave to appeal declined, 29 August 2012. The appellant’s success was limited to one of the two questions of law and there has been a delay in having the costs issue resolved. Rule 53G(5)(b) of the Court of Appeal (Civil) Rules 2005 applied.

[2012] NZCA 365 CA358/2012 The Secretary for Education v NZ Educational Institute Te Riu Roa Inc [PDF, 35 KB] Leave to appeal is granted, 14 August 2012. Is the Secretary for Education properly named as the sole respondent when the Employment Relations Authority investigates claims of the NZEI for declaratory and compliance orders for alleged breaches by the Secretary of the Primary Teachers’ Collective Agreement?

[2012] NZCA 341 CA234/2012 Air NZ Ltd v Foai [PDF, 57 KB] Application for leave to appeal against a decision by Judge Ford is dismissed. Costs order made.

[2012] NZCA 285 CA247/2012 New Zealand Cards Ltd v Ramsay [PDF, 96 KB] Extension of time granted to seek leave to appeal from an EC decision finding NZCL liable to R for $12,880 for unjustifiable dismissal. The application for leave to appeal is granted, 28 June 2012. Question of law on whether the facts found by the Employment Court judgment amount to a constructive dismissal on the basis of the duty of good faith, s 4(1A).Application for stay of execution of the judgment adjourned for further consideration on conditions.

[2012] NZCA 254 CA150/2012 White v Reserve Bank [PDF, 36 KB] Leave to appeal is granted, 15 June 2012. Did the Employment Court fail to apply orthodox interpretation principles by failing to take into account the words “unless otherwise agreed in writing” in the applicants’ employment contracts and by failing to consider what was implicit in those words against the background of past dealings and the obligations of good faith that arise in the context of an employment contract? If yes, was the respondent required periodically to review the percentage of the total remuneration package that was deemed to be superable salary and to adjust the percentage having regard to the material revealed by the review?

[2012] NZCA 78 CA769/2011 Amcor Packaging (NZ) Ltd v New Zealand Amalgamated Engineering Printing & Manufacturing Union [PDF, 13 KB] Leave to appeal granted, 8 March 2012. Did Employment Court apply unorthodox principles of interpretation in interpreting collective agreement?

[2012] NZCA 25 CA562/2011 Service and Food Workers Union Nga Ringa Tota v Cerebos Gregg's Ltd [PDF, 166 KB] Appeal allowed, 21 February 2012. Employment Court decision quashed and Employment Relations Authority determination reinstated. Employment Court erred in finding that the extra week's leave, for longstanding employees under the union's collective agreement, ceased to be an enhanced additional entitlement on April 1 2007 and became part of the four weeks annual holidays provided by the Holidays Act 2003. Court of Appeal held that despite the changes to the Holidays Act 2003, all union employees at the site with six years continuous service were still entitled to an additional one week of annual holidays.


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