Judgments of note 2019

From time to time the Court decides cases that have general importance for practitioners of employment law as well as for the particular parties. These will include some judgments of the full Court and others examining and applying new law.


Decisions of Note:

[2019] NZEmpC 190 Maddigan v Director-General of Conservation [PDF, 304 KB] (Judgment of Judge Christina Inglis, 17 December 2019) UNJUSTIFIED DISMISSAL - REMEDIES – REINSTATEMENT -  unfair process – defects more than minor – dismissal substantively unjustified – penalty of $5,000 for breach of good faith – mitigation considered – 13 weeks’ lost wages awarded - $18,000 compensation – 20% reduction for contribution – reinstatement declined.

[2019] NZEmpC 181 A Labour Inspector v New Zealand Fusion International Ltd [PDF, 299 KB] (Judgment of Chief Judge Christina Inglis, 11 December 2019) MINIMUM ENTITLEMENTS – serious breaches – declaration of breach – pecuniary penalties – compensation order – banning orders – interest award – premium for employment – immigration.

[2019] NZEmpC 178 Johnston v The Fletcher Construction Company Ltd [PDF, 340 KB] (Judgment of Judge K G Smith, 4 December 2019) UNJUSTIFIED DISMISSAL – redundancy – point of redundancy not reached – no unjustified disadvantage – no breach of good faith – contract affirmed – no constructive dismissal – Wages Protection Act 1983 – Holidays Act 2003 – holiday pay owed.

[2019] NZEmpC 173 Allied Investments Ltd v Flowers [PDF, 387 KB] (Judgment of Judge K G Smith, 25 November 2019) HOLIDAYS ACT 2003 – transfer of part of public holiday – agreement did not satisfy requirements of s 44A Holidays Act 2003.

[2019] NZEmpC 159 Allied Investments Ltd t/a Allied Security v Cradock (Judgment of Judge B A Corkill, 11 November 2019) CHALLENGE – unjustified dismissal – 90-day trial period – contract provided for “immediate” termination of employment during trail period – whether immediate termination valid notice – notice of the termination means giving advance notice – dismissal unjustified – challenge dismissed – sections 67A and 67B Employment Relations Act 2000.

[2019] NZEmpC 151 Zhang v Telco Asset Management Ltd [PDF, 537 KB] (Judgment of Judge B A Corkill, 23 October 2019) NON-DE NOVO CHALLENGE – Unjustified disadvantage – unjustified dismissal – redundancy – failure to undertake remuneration review – lost wages – compensation – banding discussed – compensation increased – contribution discussed – contribution of 25 per cent – penalty not awarded – challenge allowed in part.

[2019] NZEmpC 147 Baker v Hauraki Rail Trail Ltd [PDF, 273 KB] (Judgment of Judge M E Perkins, 17 October 2019) APPLICATION FOR JOINDER – undertaking to Authority to pay monies ordered – non-compliance –investigation meeting to be re-opened -  Court has no jurisdiction to order joining to Authority investigation – alternative course of action suggested – referred back to Authority.

[2019] NZEmpC 145 A Labour Inspector v Parihar [PDF, 368 KB] (Judgment of Judge M E Perkins, 16 October 2019) BREACHES OF MINIMUM ENTITLEMENTS - PENALTIES – PARTNERSHIP – partnership not a legal entity – application of penalty provisions in case of partnership – quantum assessed as applying to individuals – total of $200,000 awarded.

[2019] NZEmpC 144 CBA v ONM [PDF, 577 KB] (Judgment of B A Corkill, 15 October 2019) UNJUSTIFIED DISADVANTAGE - discrimination - breach of contract - delay in RTW planning unjustified - involvement of specific manager unjustified - compensation awarded.

[2019] NZEmpC 141 Savage v Wai Shing Ltd [PDF, 484 KB] (Interlocutory Judgment of B A Corkill, 10 October 2019) CHALLENGE - Application for interim injunction - interim reinstatement order binding on employer – employer not to terminate employment unless Authority or Court rescinds or varies interim reinstatement order.

[2019] NZEmpC 126 Postal Workers Union of Aotearoa Inc v New Zealand Post Ltd [PDF, 341 KB] (Judgment of Judge J C Holden, 11 September 2019) OVERTIME – CONTRACT INTERPRETATION – whether overtime is calculated over a week, offset by paid non-work hours, or whether all overtime must be paid – held that work done beyond rostered daily hours counts as overtime and is not to be offset against hours paid but not worked on other days.

[2019] NZEmpC 115 A labour Inspector v IT-Guys NZ Ltd [PDF, 294 KB] (Judgment of the full Court, 2 September 2019) LABOUR INSPECTORS – Labour Inspectors can use improvement notice issued under s 223D Employment Relations Act 2000 to recover wages and holiday pay under Minimum Wage Act 1983 and Holidays Act 2003 – compliance order granted – penalty awarded.

[2019] NZEmpC 113 Genesys Telecommunications Laboratories Ltd v Scott [PDF, 576 KB] (Judgment of Judge B A Corkill, 30 August 2019) CHALLENGE –  INTERIM REINSTATEMENT –  employee reinstated pending substantive determination – challenged dismissed.

[2019] NZEmpC 110 A Labour Inspector v Gill Pizza Limited [PDF, 244 KB] (Judgment of the full Court, 26 August 2019) JURISDICTION – Labour Inspectors – Where employee status is in dispute that issue must be determined via an application for a declaration under s 6(5) Employment Relations Act 2000.

[2019] NZEmpC 109 Downer New Zealand Limited v Livingston [PDF, 256 KB] (Judgment of Chief Judge C Inglis, 26 August 2019) CONFIDENTIALITY – Admissibility – Emails to employer copied to mediation services – Emails admissible –  ss 148 and 189 Employment Relations Act 2000.

[2019] NZEmpC 101 GD (Tauranga) Ltd v Price [PDF, 283 KB] (Judgment of the full Court, 19 August 2019) HOLIDAY PAY – COMMISSION – average daily pay vs relevant daily pay – whether employer has discretion.

[2019] NZEmpC 98 Noble v Ballooning Canterbury.com Ltd [PDF, 565 KB] (Judgment of Judge B A Corkill, 19 August 2019) WHETHER EMPLOYEE OR CONTRACTOR – No common intention to be an employee – First assertion as to employee status occurred after termination of relationship – Contract for services – pilot(external link)

[2019] NZEmpC 91 Johnstone v Kinetic Employment Ltd [PDF, 253 KB] (Judgment of Judge J C Holden, 2 August 2019) AUTHORITY POWERS – summons to produce computer - forensic examination not a search order – matter of procedure – s 179(5) precludes challenge.(external link)

[2019] NZEmpC 87 Tourism Holdings Limited v A Labour Inspector of the Ministry of Business, Innovation and Employment [PDF, 393 KB] (Judgment of Judge K G Smith, 26 July 2019) DECLARATION - Holidays Act 2003 – Meaning of “regular” – s 8(2) Holidays Act 2003 – No requirement to include in the calculation of ordinary weekly pay commission payments received during the four-week period preceding annual holiday.

[2019] NZEmpC 83 Pitman v Advanced Personnel Services Ltd [PDF, 374 KB] (Judgment of Judge K G Smith, 15 July 2019) NON-DE NOVO CHALLENGES – RESTRAINT OF TRADE – DAMAGES – INDEMNITY CLAUSE – COSTS – s 238 Employment Relations Act 2000.

[2019] NZEmpC 66 Morgan v Tranzit Coachlines Wairarapa Ltd [PDF, 261 KB] (Judgment of Chief Judge C Inglis, 28 May 2019) FIXED-TERM EMPLOYMENT AGREEMENT – VALIDITY – whether relying on uncertain funding streams is genuine reason – whether funding concerns are reasonable – whether alternatives to fixed-term agreement available.

[2019] NZEmpC 59 Kazemi v Rightway Ltd (Judgment of Judge J C Holden, 15 May 2019) EMPLOYMENT PREMIUM – employee needed to pay $125,000 as buy-in fee to partnership scheme – test for whether a premium applied – whether benefit gained aside from employment – misrepresentation – breach of contract – whether contract is illegal – penalty imposed – costs.

[2019] NZEmpC 49 Mathews v Bay of Plenty District Health Board [PDF, 449 KB] (Judgment of the Full Court, 2 May 2019) CONTRACTUAL INTERPRETATION – RETIREMENT GRATUITY – whether employee entitled to retirement gratuity – whether the retirement gratuity is discretionary – whether employee actually retired.

[2019] NZEmpC 47 Postal Workers Union of Aotearoa Inc v New Zealand Post Ltd [PDF, 349 KB] (Judgment of the Full Court, 2 May 2019) AVAILABILITY PROVISION – whether s 67D intended to only apply to zero-hour contracts – whether compulsory overtime provisions amount to availability provision – whether employees on a salary that includes reasonable compensation for availability.

[2019] NZEmpC 45 Chambers v Pelabon [PDF, 347 KB] (Judgment of Judge B A Corkill, 18 April 2019) COMPLIANCE ORDER – whether compliance should be ordered against holding company and director – good faith issue during Authority investigation – challenge limited to certain issues – whether Lawrence Publishing Co of New Zealand Ltd is applicable under Employment Relations Act 2000 – compliance can be ordered not only against employer – compliance ordered against holding company and director.

[2019] NZEmpC 37 Derbie v Tranzurban Hutt Valley Ltd [PDF, 674 KB] (Judgment of Judge B A Corkill, 3 April 2019) ENTITLEMENT TO REST BREAKS – Land Transport Rules on rest breaks considered – whether LTA rules prevail over ERA rest break provisions – regimes should apply side-by-side – whether operational issues eliminate most breaks – whether appropriate access to toilets – rest breaks are compliant with ERA.

[2019] NZEmpC 20 Jacks Hardware and Timber Ltd v First Union Inc [PDF, 537 KB] (Judgment of Judge K G Smith, 28 February 2019) FACILITATION – BREACH OF GOOD FAITH - FIXING – whether Authority correct to order fixing of terms of collective agreement -  consideration of grounds in s 50J – breach must be “sufficiently serious” and sustained to undermine bargaining – offer of further mediation not reasonable – fixing only effective remedy – challenge dismissed.

[2019] NZEmpC 16 Moody v Chamberlain [PDF, 256 KB] (Interlocutory Judgment of Chief Judge Christina Inglis, 15 February 2019) APPLICATION FOR APPOINTMENT OF LITIGATION GUARDIAN – requirements of High Court Rules – affidavit evidence needed for one respondent – whether hybrid model appropriate – litigation guardian appointed under HCR 4.29, 4.38.

[2019] NZEmpC 12 A Labour Inspector v Daleson Investment Ltd [PDF, 376 KB] (Judgment of Chief Judge Christina Inglis, 11 February 2019) QUANTUM OF PENALTY – S 174E    - whether Authority erred in setting penalty – whether reasons given by Authority were adequate to meet s 174E  - examination of steps in assessing penalty - brevity of determination and rationale not adequate – penalty uplifted to $40,000

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