Appellate judgments 2016

Supreme Court

[2016] NZSC 143 Lowe v Director General of Health [PDF, 59 KB] LEAVE TO APPEAL GRANTED – whether the applicant was a homeworker and thus an employee of the Ministry of Health.

[2016] NZSC 108 ASG v Hayne(external link) LEAVE TO APPEAL GRANTED – whether disclosing information was breach of the Criminal Procedure Act 2011 – whether the information could have been used anyway.

[2016] NZSC 84 NZ Air Line Pilots' Association Incorporated v Air New Zealand Ltd(external link) Leave granted NZALPA to appeal from the CA decision [2016] NZCA 131, 39 TCL 14/5 on the question of whether the CA should have dismissed the appeal for lack of jurisdiction

Court of Appeal

[2016] NZCA 525 NZ Basing Ltd v Brown [PDF, 357 KB] DISCRIMINATION – CONFLICT OF LAWS – whether New Zealand law applied to contract between parties – contract specified Hong Kong law should apply – clause specifying Hong Kong law is decisive – Employment Relations Act 2000 does not overrule choice of law clause – anti-age discrimination provision does not trump transnational contracting – Employment Court was incorrect to find that age discrimination laws apply in this employment relationship – appeal allowed.

[2016] NZCA 495 Lean Meats Oamaru Ltd v NZ Meat Workers & Related Trades Union Inc [PDF, 135 KB] Meaning of "paid rest breaks" in s 69ZD Unsuccessful appeal from the EC finding that the section required rest breaks to be paid "at the same rate for which the employee would be paid to work"

[2016] NZCA 482 AFFCO New Zealand Ltd v NZ Meat Workers & Related Trade Union Inc [PDF, 405 KB] Employment Court declaration that AFFCO unlawfully locked out seasonal meatworkers by refusing to engage them unless they accepted new individual terms of employment which were inconsistent with existing rights under an expired collective agreement, upheld  CA overturning the EC finding that the company and meatworkers were in a continuous employment relationship which lasted throughout the off season - contradicted the settled industry understanding that the employment of meat workers is terminated at the end of each season
EC failed to apply the correct principles of contractual interpretation, and earlier decisions of the CA and EC. However, the CEC created ongoing enforceable rights and duties and the purpose of AFFCO's actions was to undermine the collective bargaining regime provided by the Act to redress the inherent inequality of power faced by the workers. The unlawful lockout provisions must extend to protect former employees who have contractual rights to an offer of re-employment from an employer refusing to engage them unless they accept new terms inconsistent with their existing rights

[2016] NZCA 464 Peter Reynolds Mechanical Ltd t/a The Italian Job Service Centre v Denyer (Labour Inspector) [PDF, 542 KB] Fine of $5,500 imposed on the appellant under s 140(6)(d) for non-compliance with an ERA's compliance order successfully appealed. By the time the EC imposed the fine the appellant had complied and paid the respondent Labour inspector (on behalf of a former employee) $1,568 for holiday pay and interest as ordered. Jurisdiction to impose a fine under s 140(6)(d) when non-compliance relates to a monetary order, discussed at length and confirmed
Discussion of considerations relevant to exercise of the jurisdiction
Here, that the amount had been paid at hearing; amount owing modest, and business not in good shape financially - and fine manifestly excessive (comparison with fines in recent contempt cases) Fine of $750 substituted.

[2016] NZCA 419 A Ltd v H [PDF, 234 KB] Personal grievance Investigation by A Ltd into an incident between H (51 years), employed by it as a pilot, and the complainant C (19 years), a novice flight attendant while H and C were on an overseas layover had led to H's dismissal. H's unjustified dismissal claim had been dismissed by the ERA but allowed on appeal to the EC. CA decision allowing A Ltd's appeal. Approach of the EC in determining whether A Ltd had sufficiently investigated the allegations against H for the purposes of s 103A was not correct in law Judge in effect applying a set of rules that has got in the way of a direct application of the statutory test.Orders of reinstatement, payment of wages and compensation set aside and matter remitted back to the EC to determine remedy.

[2016] NZCA 385 B v Ala [PDF, 114 KB](external link) Leave refused B under s 214(1) to appeal an EC decision upholding the ERA giving his employer (where B was employed as an IT network specialist) order that B comply with confidentiality undertakings in a settlement agreement and imposing a penalty for breach.

[2016] NZCA 372 Scarborough v Micron Security Products Ltd [PDF, 27 KB] Applications for leave to appeal declined, order as to costs.   Civil practice and procedure, leave to appeal.   Whether proposed grounds of appeal against two costs decisions of Employment Court were of general or public importance or ought to be submitted to the Court of Appeal for decision.
Held, proposed grounds of appeal do not raise any arguable point of sufficient importance, Employment Court considered and applied well-established principles in awarding increased and indemnity costs.

[2016] NZCA 369 Director-General of Health v Lowe [PDF, 247 KB]Homeworker" (s 5) L, who undertook support care under a Government programme, the Carer Support Scheme (providing respite to persons providing unpaid full time care to a person with a disability) CA overturning a full EC decision that L was a homeworker and so deemed to be an employee to whom obligations were owed under the ERA and other employee L neither employed nor contracted by the Ministry or DHB but directly by and at the sole discretion of the full time carer needing respite support L not within the s 5 definition because the full time carer would not have engaged her in the course of a trade or business Funding provided by the appellants and standard terms on the claim form not taking the case beyond mere funding into an "engagement" category.

[2016] NZCA 314 Saad v McIvor [PDF, 65 KB](external link)APPLICATION FOR EXTENSION OF TIME TO SEEK LEAVE TO APPEAL – no prospect of success in attaining leave to appeal – application declined.

[2016] NZCA 300 Hockey Manawatu Inc v Banks [PDF, 475 KB](external link) Leave refused to appeal under s 214 on questions of law, arising from an EC decision where the applicant was found to have unjustifiably dismissed B from its employment (in relation to health issues) EC had found breach of obligation of good faith towards B Issues identified not questions of law - first proposed ground that the EC wrongly admitted privileged legal advice contrary to the Evidence Act 2006, ss 53 and 54 - admissibility may give rise to a question of law but here admissibility turned on whether privilege had been waived (a question of fact).

[2016] NZCA 262 Brill v Labour Inspector [PDF, 60 KB](external link) Civil practice and procedure - leave to appeal, 15 June 2016.  Application for leave to appeal against the judgment of the Employment Court granted.   Application for extension of time granted. Held:  leave granted on the following question - in terms of s 234(2) of the Employment Relations Act 2000, what must the Labour Inspector prove to establish that any officer, director, or agent of the company has directed or authorised the default in payment of the minimum wages or holiday pay or both? Whether:  an extension of time should be granted. Held:  the appeal raises an important and arguable question; the delay does not justify refusing an extension.

[2016] NZCA 203 ASG v Hayne [PDF 609KB] [PDF, 610 KB] NON-PUBLICATION ORDER – whether non-publication order was breached – definition of “publication” under the Criminal Procedure Act 2011 – word-of-mouth communications can be publications – publication does not include communicating information only to persons with a genuine interest in receiving it – employer had genuine interest due to health and safety obligations – Employment Court was correct to find non-publication order was not breached – appeal dismissed.

[2016] NZCA 191 Ritchies Transport Holdings Ltd v Merennage [PDF, 486 KB] APPLICATION FOR LEAVE TO APPEAL – no error of law of public importance – application declined.

[2016] NZCA 137 Lean Meats Oamaru Ltd v New Zealand Meat Workers & Related Trades Union Inc [PDF, 78 KB](external link) The application for leave to appeal granted, no order as to costs, 19 April 2016 Grant of leave to appeal EC's decision Part 6D required rest breaks to be paid at the same rate for which the employee would be paid to work.

[2016] NZCA 131 Air New Zealand Ltd v New Zealand Air Line Pilots’ Assoc Inc [PDF, 592 KB](external link) Successful appeal against EC's decision "any agreement" could include the benefit of an agreement without its burden, thus incorrectly applying contractual interpretation principles by reaching a conclusion inconsistent with those words' natural and ordinary meaning, and entitling the CA's intervention (otherwise prohibited by the Act's construction privative provision).

[2016] NZCA 126 The Commissioner of Salford School v Campbell [PDF, 125 KB](external link) The application for leave dismissed, order as to costs, 14 April 2016.

[2016] NZCA 121 AFFCO New Zealand Ltd v New Zealand Meat Workers & Related Trades Union Inc and Others [PDF, 153 KB](external link) The application for leave to appeal granted, 13 April 2016.

[2016] NZCA 54 Scarborough v Micron Security Products Ltd [PDF, 149 KB](external link) The application for leave to appeal dismissed, order as to costs, 19 March 2016.

[2016] NZCA 21 Nisha v LSG Sky Chefs NZ Ltd [PDF, 403 KB](external link) Application for leave to appeal dismissed, order as to costs, 22 February 2016. Civil practice and procedure, leave to appeal. Whether Employment Court’s approach to assessing whether a purported variation to an employment contract was a sham gives rise to a question of general or public importance. Held, test for a sham transaction is settled, unassailable factual findings of Employment Court necessitate finding the contractual variation was a sham. Other proposed grounds of appeal deriving from Employment Court’s conclusion the variation was a sham are not of general or public importance.

[2016] NZCA 20 D'Arcy Smith v Natural Habitats Ltd [PDF, 381 KB](external link) The application for leave to appeal dismissed, order as to costs, 19 February 2016.

[2016] NZCA 19 NZ Aluminium Smelters Ltd v Weller [PDF, 439 KB](external link) Appeal dismissed, order as to costs, 22 February 2016. Employment law, statutory holidays. Whether Employment Court erred in law in its interpretation of s 7A of the Holidays Act 1981 in concluding employees accrue a day’s leave for a statutory holiday that falls on a non-working day for that employee. Held: s 7A requires employment contracts to provide not less than 11 holidays on which the employee is not required to work; and when those holidays fall on a working day for the employee they are on pay. Section 7A does not ensure the employee receives the 11 holidays on days he or she would otherwise have to work, or make any provision for the accrual of leave in lieu of the 11 holidays. Accrual of leave is governed by the contractual bargain. The Employment Court did not err in its interpretation of s 7A, and its conclusion as to when a day’s leave.


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