Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

[2015] NZEmpC 157 Labour Inspector v Cypress Villas Ltd (Judgment of the Full Court, 16 September 2015) SECTION 234 - INTERPRETATION - DISSENT - consideration of application of s 234 of the ERA 2000 – first consideration of corporate veil-piercing where Labour Inspector has commenced action against company for recovery of minimum wages and holiday pay – consideration of legislative purpose and history of the section – plain meaning of words considered – steps outlined – relationship between subss(2) & (3) clarified - burden of proof addressed: Majority – intention not required for default – Authority discretion important: Dissent – knowledge of default required – different standard required for employers and directors, officers and agents of a company – “directed or authorised the default” to be read as a whole – intention of Parliament relevant to interpretation

[2015] NZEmpC 155 Zonneveld (Labour Inspector) v Maudaara Limited (Interlocutory Judgment of Judge B A Corkill, 10 September 2015) APPLICATION TO FILE STATEMENT OF CLAIM OUT OF TIME – Delay due to inadvertent misunderstanding – delay was minimal - absence of prejudice or hardship to respondent – there are bona fide issues for resolution in the challenge – steps taken to remedy default as soon as it was discovered – application not opposed - Held, leave granted to applicant to file statement of claim.

[2015] NZEmpC 152 Juahm Industries Company Limited v Isnanto (Interlocutory Judgment of Judge B A Corkill, 2 September 2015) APPLICATION TO FILE STATEMENT OF DEFENCE OUT OF TIME - Whether leave should be granted to allow defendants to file statement of defence out of time – consideration of jurisdiction to extend time – s219 Employment Relations Act 2000 – counsel’s error regarding timeframes was inadvertent rather than deliberate – reason for delay satisfactorily explained – delay was minimal – absence of prejudice or hardship to plaintiff – defendants not to be prejudiced by inadvertent error of their lawyer – overall justice justifies grant of leave – Held, drafted statement of defence to be treated as operative statement of defence.

[2015] NZEmpC 150 Burrowes v Commissioner of Police - (Costs Judgment of Judge B A Corkill, 1 September 2015) COSTS – Application for costs in the Employment Relations Authority and costs in Employment Court – whether costs were reasonably incurred – Sixty-six per cent starting point – whether factors justify increase or decrease – consideration as to how costs to be approached where both parties have measure of success – assessment as to reliance to be placed on High Court Rules in relation to costs – consideration as to disbursements – consideration as to Calderbank offer – Held, percentage of costs in both the Authority and the Court awarded to plaintiff.

[2015] NZEmpC 149 NZ Meat Workers & Related Trades Union Inc v AFFCO NZ Ltd -(Interlocutory Judgment (No4) of Chief Judge G L Colgan, 31 August 2015) PROCEDURE – how separate but related proceedings should go to trial – issues are whether insistence on individual agreement unlawful; and declaration sought that collective bargaining is at an end – order for hearings set down

[2015] NZEmpC 142  First Union Inc v Jacks Hardware & Timber Ltd (Preliminary Judgment of Chief Judge G L Colgan, 17 August 2015) WHETHER LAW PRIOR TO OR FOLLOWING AMENDMENT TO S 33 APPLIES – whether wording of transitional provision applies to all bargaining or just to that begun and not concluded – wording must refer only to bargaining not concluded at 6 March 2015 - whether collective bargaining was ended lawfully prior to amendment remains for hearing

[2015] NZEmpC 145 McIvor v Saad (Judgment of Chief Judge GL Colgan, 19 August 2015) NATURE OF EMPLOYMENT RELATIONSHIP – MINIMUM WAGE – CONSTRUCTIVE DISMISSAL – plaintiff was employee – unilateral reduction in hours offered, or full hours at less than minimum wage - constructive dismissal found – remedies increased because of cultural implications of unjustified dismissal.

[2015] NZEmpC 143 JAE Sales Ltd t/a Aussie Butcher Birkenhead v Prins - (Judgment of M E Perkins, 17 August 2015) )RECOVERY OF WAGES AND HOLIDAY PAY – dispute over calculation – records inadequate – reimbursements ordered

[2015] NZEmpC 140 Zespri International Ltd v Yu second (Interlocutory Judgment (No 2) of Chief Judge G L Colgan, 14 August 2015) AMENDMENT TO PREVIOUS ORDERS FOR TRANSFER OF DEVICES - arrangements for laptop and USB drives to be returned to NZ – independent firm of lawyers instructed by consent.

[2015] NZEmpC 154 Parkinson v Opotiki Rose Garden Preschool Community Trust Inc (Consent Judgment of Judge Christina Inglis, 10 September 2015) CONFIDENTIAL SETTLEMENT – terms of resolution settled at Judicial Settlement Conference.

[2015] NZEmpC 138 NZ Meat Workers Union Inc v South Pacific Meats Ltd and Talley (Judgment of Judge G L Colgan, 7 August 2015)  AUTHORITY’S JURISDICTION –COMMON LAW RIGHT TO PENALTY PRIVILEGE –whether there is a residual common law privilege against self-incrimination in civil penalty proceedings – whether this exists at Authority - comparison of penalty privilege rights at Authority and Employment Court – penalty proceedings not criminal proceedings – reg 39(2) negates right to disclosure – can be determined by Court – - NZBORA s 27,29 considered – Evidence Act ss 60, 63 considered – privilege applies to corporations – two narrow self-incrimination privileges may be asserted at the Authority.

[2015] NZEmpC 135 Fagotti v Acme & Co Ltd (Judgment of the Full Court, 5 August 2015) COSTS AT THE AUTHORITY – CALDERBANK OFFERS – INDEMNITY COSTS – GST – whether the Authority should be influenced by the circumstances and justice of a particular case in awarding costs – different principles apply in the Authority and the Court – daily tariff at Authority has value – GST issue left for future case – not a case for indemnity costs – challenge dismissed.

[2015] NZEmpC 132  Waterford Holdings Ltd v Morunga - (Judgment of B A Corkill, 3 August 2015) UNJUSTIFIED DISMISSAL – dismissal for serious misconduct with alleged animal cruelty towards farm stock – issues of procedural fairness – lost remuneration must be as a result of the grievance – procedural error did not result in loss remuneration - compensation for hurt, humiliation and loss of dignity discussed – conduct sufficiently egregious as to justify 100 per cent reduction in remedies for contributory conduct – Held, challenge succeeds, no remedies payable, order of stay discharged.