Judgments of note 2010

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.

Auckland DHB & 20 Other DHB Named in the attached Schedule v NZ Resident Doctors Assoc [2010] NZEmpC 148 [PDF, 56 KB] 
[Full Court, Chief Judge Colgan and Couch J, 3 November 2010] - Scope and application of s 32(1)(e) and s 34 of Employment Relations Act 2000 in respect of requirement for parties engaged in collective bargaining to provide certain information to each other on request.

McDonald v Ontrack Infrastructure Ltd And Anor [2010] NZEmpC 132 [PDF, 962 KB]
[Full Court, 5 October 2010] - Triangular/tripartite employment relationships. Section 6 of ERA to be applied in determining whether there is a contract of service between employee of labour hire company and that company's client by determining the real nature of the relationship between those parties. The onus is on the labour hire employee to establish the existence of a contract of service with the client company which satisfies the common law contractual requirements. These requirements may be established by implication from the parties' overt conduct. The Court held that it is not helpful to set out rules or factors to be taken into account in determining the real nature of a relationship in a tripartite arrangement. This turns on the facts of each case and a consideration of all relevant matters.

Smith v Stokes Valley Pharmacy (2009) Limited [2010] NZEmpc 111 [PDF, 126 KB] 
[Chief Judge G L Colgan, 24 August 2010] – Interpretation and application of ss 67A and 67B ERA relating to trial provisions in employment agreements. Plaintiff not precluded in law from bringing personal grievance proceedings for unjustified dismissal and unjustified disadvantage. Plaintiff unjustifiably disadvantaged in, and dismissed from, her employment with defendant. Defendant breached s 4 and individual employment agreement.

Jinkinson v Oceana Gold (NZ) Ltd [2010] NZEmpC 102 [PDF, 90 KB] 
[Judge Couch, 4 August 2010] – Successful challenge. Plaintiff unjustifiably dismissed. Reinstatement ordered.

Marshment v Sheppard Industries Ltd [2010] NZEmpc 98 [PDF, 81 KB] 
[Chief Judge Colgan, 30 July 2010] – Successful challenge. Interlocutory injunction declined on conditions.

Hutton & Ors V Provencocadmus Ltd (In Receivership) & Ors [2010] NZEmpC 94 [PDF, 49 KB] 
[Judge M E Perkins, 22 July 2010] – Referral of question of law. Receivership of respondent companies does not prevent Authority investigating and determining applicants’ claims brought under s 131 ERA.

NZ Fire Service Commission v Warner & Ors [2010] NZEmpC 90 [PDF, 60 KB] 
[Chief Judge Colgan, 19 July 2010] – Jurisdictional issue. Authority is empowered to determine whether employees are required to repay monies mistakenly overpaid by their employer.

Coy v Commissioner of Police [2010] NZEmpC 88 [PDF, 67 KB] 
[Chief Judge Colgan, 8 July 2010] – Four preliminary issues. Plaintiff entitled to decline to disclose psychologist’s notes relating to consultation with and treatment by him; defendant entitled to redact irrelevant parts of otherwise relevant and discoverable documents; defendant’s correspondence to Privacy Commissioner privileged by statute; plaintiff’s husband not permitted to actively act as her advocate by leading evidence, cross-examining or making submissions.

Secretary for Justice v Dodd [2010] NZEmpC 84 [PDF, 126 KB] 
[Chief Judge Colgan, 2 July 2010] -Unsuccessful challenge to finding that defendant unjustifiably dismissed. Defendant’s reinstatement confirmed.

SFWU v Rendezvous Hotels (NZ) Ltd [2010] NZEMPC 78 [PDF, 39 KB] 
[Chief Judge Colgan, 22 June 2010] – Unsuccessful application for interlocutory injunction to prevent lockouts.

NZAEPMU v SCA Hygiene Australasia Ltd [2010] NZEmpC 73 [PDF, 46 KB] 
[Judge Travis, 10 June 2010] - Unsuccessful challenge. Public holidays falling during closedown held not to be otherwise working days so no obligation for defendant to pay employees not less than their relevant daily pay pursuant to s 49 Holidays Act.

NZ Meat Workers & Related Trades Union v AFFCO NZ Ltd [2010] NZEmpC 62 [PDF, 63 KB] 
[Chief Judge Colgan, 18 May 2010] – Successful challenge to Authority’s determination. Trial employment agreement inconsistent with collective agreement and thus unlawful.

Service & Food Workers Union v OCS Ltd [2010] NZEmpC 61 [PDF, 27 KB] 
[Chief Judge Colgan, 17 May 2010] – Successful challenge to Authority’s determination. Defendant not entitled to unilaterally change frequency of wage payments to employees.

Wellington Free Ambulance Service v Adams [2010] NZEmpC 59 [PDF, 46 KB] 
[Chief Judge Colgan, 17 May 2010] – Successful challenge to Authority’s determination. Defendant’s application for interim reinstatement declined.

Vice-Chancellor of Massey University v Wrigley & Anor [2010] NZEmpC 52 [PDF, 27 KB] 
[Chief Judge Colgan, 11 May 2010] – Successful challenge: documents to be disclosed subject to conditions.

Maritime Union of NZ v Ports of Auckland Ltd [2010] NZEmpC 47 [PDF, 11 KB] 
[Judge Perkins, 5 May 2010] – Consent judgment.

Gates v Air New Zealand Ltd [2010] NZEmpC 26 [PDF, 30 KB] 
[Judge Couch, 24 March 2010] – Costs.

The Chief of Defence Force v Ross-Taylor [2010] NZEmpC 22 [PDF, 55 KB]
[Judge Travis, 10 March 2010] – Successful challenge – plaintiff held to be an independent contractor rather than an employee.

NZ Tramways & Public Passengers Transport Employees' Union Inc v Wellington City Transport Limited [2010] NZEmpC 12 [PDF, 48 KB] 
[Chief Judge Colgan, 2 March 2010] – Successful challenge for reimbursement of legal costs from employer.

NZ PSA v Secretary for Justice [2010] NZEmpC 11 [PDF, 77 KB]
[Chief Judge Colgan, 25 February 2010] - Successful application for declaration that bargaining for collective agreement had not concluded notwithstanding defendant's unilateral determination that it was at an end.

National Distribution Union Inc v Capital and Coast District Health Board [2010] NZEmpC 2 [PDF, 37 KB]
[Chief Judge Colgan, 18 January 2010] – Proceedings removed; long service leave in collective agreement not subsumed by 4th week of annual leave under Holidays Act 2003.

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