Judgments of note 2012

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


Faitala & Goff v Terranova Homes & Care Ltd [2012] NZEmpC 199 [PDF, 217 KB] 
[Judgment of the Full Court, 27 November 2012] -Removal from the Authority. Case concerned questions of law on the employer's entitlement to deduct the employer's compulsory KiwiSaver contribution from the employees' gross wages in circumstances where those wages are at the minimum level specified in the Minimum Wage Act 1983. The Full Court found that the defendant was in breach of s 6 of the Minimum Wage Act and that the plaintiffs are being paid for their work at a rate that is less than the statutorily prescribed minimum wage. However, the Full Court did find that the contractual terms and conditions accounted for the amount of compulsory contributions that the employer is required to pay. The parties were encouraged to resolve any outstanding issues relating to wage arrears between themselves, but leave was reserved to bring any residual matters relating to wage arrear calculations back before the Court for determination. Costs to lie where they fall.

Service and Food Workers Union Nga Ringa Tota Inc v Sanford Ltd [2012] NZEmpC 168 [PDF, 185 KB] 
[Chief Judge Colgan, 28 September 2012] -Reasons for oral judgment in [2012] NZEmpC 164. Successful challenge to Authority determination declining reference to facilitated bargaining. Court disagreed with Authority's assessment that efforts (including mediation) to resolve the difficulties that have precluded the parties from entering into a collective agreement, have been insufficiently extensive. Parties directed to first attend mediation within one month of this judgment and if unsuccessful Authority to undertake facilitation.

Allen v C3 Ltd [2012] NZEmpC 124 [PDF, 256 KB]
[Judge Inglis, 31 July 2012] -Successful challenge. Plaintiff's dismissal procedurally and substantively unjustified. Defendant's decision-maker also witness, complainant and should not have made decision to dismiss. Despite misconduct of plaintiff, dismissal also substantively not what fair and reasonable employer would do. Successful application for reinstatement. Court held previous s 125 test for reinstatement applied because of effect of ss 17 and 18 Interpretation Act 1999. Three month's lost wages awarded as contribution of employee negated any further award. No award for non-economic loss.

Idea Services Ltd v Barker [2012] NZEmpC 112 [PDF, 143 KB] 
[Judge Inglis, 16 July 2012] - Successful non de novo challenge. Defendant dismissed and Authority held defendant raised a personal grievance under s 114. Court held once employment relationship ended, s 4 duty of good faith also ended. Without prejudice letter which allegedly raised grievance should not have been admitted into evidence without consent of both parties. Employee not required to specify nature of remedies requested when raising grievance. Admissible correspondence and discussions did not raise grievance as setting out sections of the Act is not adequate particularisation of grievance.

Doran v Crest Commercial Cleaning Ltd [2012] NZEmpC 97 [PDF, 224 KB] 
[Full Court, 21 June 2012] - Removal from Authority. Case concerned the interpretation and application of Part 6A of the Employment Relations Act 2000 and whether the plaintiff had validly elected to transfer to the defendant for the purposes of s 69I. The full Court held that the plaintiff had validly elected to transfer to the defendant, thus he became an employee of the defendant by operation of statute. By failing to recognise and implement the employment relationship the defendant dismissed the plaintiff, which was plainly unjustifiable. Plaintiff awarded $775.45 for lost wages, 6% interest and $4,000 compensation.

Lend Lease Infrastructure Services (NZ) Ltd v Recreational Services Ltd [2012] NZEmpC 86 [PDF, 147 KB] 
[Judge Inglis, 1 June 2012] -Plaintiff claimed some of its employees performing park maintenance contract for Auckland Council were performing "cleaning services" under Schedule 1A of the Act and could transfer to new employer (who was taking over contract with the Council) under Part 6A. Court held employees were not performing "cleaning services". Court looked to real nature of the roles the employees were performing finding that cleaning tasks performed were incidental, preliminary or preparatory and real nature of the positions was not the provision of cleaning services.

Mayne v Polychem Marketing Ltd [2012] NZEmpC 60 [PDF, 105 KB]
[Chief Judge Colgan, 18 April 2012] -Successful challenge. Plaintiff's contract contained clause providing continued health benefits and insurance after he left employment in 1990. Plaintiff claimed employer breached employment contract when it stopped health benefits in November 2009. Authority found no jurisdiction to consider claim. Court held Authority and Court had jurisdiction to consider if employer had breached ongoing term of employment contract.

Foai v Air New Zealand Ltd [2012] NZEmpC 57 [PDF, 265 KB]
[Judge Ford, 4 April 2012] - Successful challenge. Plaintiff overpaid by defendant for 16 months. Defendant made claim in restitution for repayment. Plaintiff queried his pay on several occasions but overpayments were not corrected. Court held that defendant had not made out a mistake of fact needed for its claim of unjust enrichment to succeed. In addition, both defences advanced by the plaintiff successful. Equitable defence of change of position succeeds as the plaintiff, in good faith, changed his position in a way that would be inequitable to now order repayment. And plaintiff's s 94B Judicature Act 1908 defence succeeds because plaintiff, in good faith, altered his position in reliance on the validity of the payments and, having regard to the equities, it would be inequitable to compel repayment.

Carter Holt Harvey Limited v McAuley [2012] NZEmpC 48 [PDF, 134 KB] 
[Chief Judge Colgan, 14 March 2012]- Successful challenge to an Authority determination. Court held defendant not unjustifiably disadvantaged. Authority misinterpreted s 66 of the Employment Relations Act 2000 by requiring the plaintiff to meet a test of sufficient specificity which is not only absent from the section but adds a gloss to it that is contrary to its scheme. When the correct s 66 test was applied to the fixed-term agreements, either or both tests were satisfied. Plaintiff awarded costs.

White & Others v Reserve Bank of New Zealand [2012] NZEmpC 20 [PDF, 148 KB] 
[Judge Ford,17 February 2012]- Descriptor: Removal from Authority. Unsuccessful claim by plaintiffs that the defendant failed to fulfil its obligation to periodically review and adjust the employee superable salary percentage, despite a contractual undertaking to do so. Court held that defendant was not under any contractual obligation to regularly review and adjust the superable salary percentage. Defendant entitled to costs.

Back to top

This page was last updated: