Judgments of note 2014

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


[2014] NZEmpC 229 Brown & Sycamore v New Zealand Basing Limited of Hong Kong [PDF, 306 KB]
[Judgment of Judge B A Corkill, 15 December 2014] CONFLICT OF LAWS – Plaintiffs are pilots employed by Auckland-based subsidiary of Hong Kong-based airline – Employment agreements specify that the agreements are to be governed by law of Hong Kong – Hong Kong law provides no protections against age discrimination– Agreements specify age of retirement at 55 – Plaintiffs to turn 55 next year – Plaintiffs to be dismissed – Declarations sought that proposed actions are discriminatory under New Zealand law – Plaintiffs “based” in New Zealand and would therefore otherwise be subject to the provisions of the Employment Relations Act (ERA) – ERA an overriding statute by virtue of s 238 which prohibits contracting out – Express choice of Hong Kong law displaced – Express choice of Hong Kong law also contrary to New Zealand public policy which places an importance upon anti-discrimination values – Age discrimination provisions of Employment Relations Act and Human Rights Act apply to plaintiffs – Discriminatory for defendant to force plaintiffs into retirement.

[2014] NZEmpC 213 Hixon v Campbell [PDF, 264 KB]
[Judgment of the Full Court, 17 November 2014] WAGES PROTECTION ACT - LABOUR INSPECTOR ACTION TO RECOVER UNLAWFUL WAGE DEDUCTION – MEANING OF ‘EMPLOYER’ - company deducted cost of work tools from wages – Labour Inspector had no statutory authority to take action on behalf of employees – whether employees could recover deduction from other persons - consideration of origins and meaning of ‘employer’ in Wages Protection Act 1983 – statutory interpretation - defendants were not employers.

[2014] NZEmpC 208 Hayne v ASG [PDF, 162 KB]
[Judgment of the Full Court, 11 November 2014] UNJUSTIFIED DISADVANTAGE - APPLICATION AND INTERPRETATION OF NON-PUBLICATION ORDER – question whether employer issuing final written warning based on suppressed information was justifiable action – whether period of suspension unreasonable-consideration of meaning of publication within Criminal Procedure Act 2011 – employer may be entitled to rely on suppressed information where there is clear nexus between the information and employee’s obligations to the employer – employer’s action was justified.

[2014] NZEmpC 188 Harris v The Warehouse Ltd [PDF, 501 KB]
[Judgment of Chief Judge Colgan, 3 October 2014] UNJUSTIFIED DISMISSAL – NATURE OF SERIOUS MISCONDUCT - REDUCTION FOR CONTRIBUTION - REINSTATEMENT– RECOMMENDATIONS TO EMPLOYER - security person dismissed for serious misconduct after complaint from customer – notes not kept from key interview- reliance on CCTV footage with no sound – other evidence available supported plaintiff’s denial – intimidation and threats defined – ‘bringing employer into disrepute’ discussed - while some of plaintiff’s actions poorly judged, not at serious end of spectrum - alternatives to dismissal not considered by employer – consideration of 100% reduction for contribution – lesser percentage found – reinstatement ordered –consideration of lesser reinstatement - employer advised to provide training and support to managers on best investigation and interview practices.

[2014] NZEmpC 174 Workforce Development Ltd v Hill [PDF, 143 KB]
[Judgment of Judge Christina Inglis, 19 September 2014] UNJUSTIFIED DISMISSAL – TRIPARTITE RELATIONSHIPS – Plaintiff contracted by Corrections to provide literacy services to prisons – Defendant employee denied entry to prison following breach of policy – Defendant dismissed by plaintiff following removal – Employment agreement not frustrated – Plaintiff employer still subject to statutory obligations – Difficulties in applying s 103A(3) factors in context of tripartite relationships – Defendant under positive obligation to familiarise herself with prison policies – Plaintiff not under obligation to strongly advocate for renewal of plaintiff’s access –Defendant properly advised of right to support person at meetings with Corrections – Not role of the Court to consider any perceived deficiencies in process undertaken by Corrections – Plaintiff genuinely considered redeployment opportunities – Defendant justifiably dismissed.

[2014] NZEmpC 169 Goulden v Capital and Coast District Health Board [PDF, 97 KB] 
[Interlocutory Judgment of Judge B A Corkill, 15 September 2014] WHETHER STATEMENT OF DEFENCE FILED IN TIME - how to calculate ‘final day’ – interpretation of Regulation 28 – time begins to run from the date of the action described in Reg 28 – statement of defence filed one day out - genuine confusion- no issue of prejudice to other party- leave granted.

[2014] NZEmpC 168 New Zealand Airline Pilots Association v Air New Zealand Ltd [PDF, 185 KB]
[Judgment of Chief Judge G L Colgan, 11 September 2014] INTERPRETATION OF COLLECTIVE AGREEMENT – whether a clause requiring passing on benefits under one collective agreement to employees covered by another collective agreement applied to a single benefit or to the whole agreement- rules of interpretation of collective agreements – Air New Zealand required to pass on to NZALPA members of particular class of pilots, the benefits provided to that pilot class under the FANZP collective agreement.

[2014] NZEmpC 159 Franix Construction Ltd v Tozer [PDF, 146 KB]
[Judgment of Chief Judge G L Colgan, 5 September 2014] CONTRACT OF SERVICE/CONTRACT FOR SERVICES – challenge under s 6 of the ERA 2000 – whether defendant was employee or contractor – some indicia suggested contract for services – other conditions suggested real nature of relationship was employer/employee – Court must conduct “intensely factual” analysis to establish real nature of relationship– parties were in employment relationship – directed to mediation.

[2014] NZEmpC 153 Roy v Board of Trustees of Tamaki College [PDF, 131 KB]
[Judgment of Chief Judge G L Colgan, 20 August 2014] LEAVE TO PURSUE CHALLENGE OUT OF TIME – CONSTRUCTIVE DISMISSAL CLAIM– Personal grievance not raised in time - Plaintiff waiting for copy of Board’s report to Teachers Council. Reasons akin to “exceptional circumstances” described in s115(d). Circumstances therefore ‘exceptional’ under s 114(4)(a) and just to grant leave.

[2014] NZEmpC 119 Pact Group v Services and Food Workers Union Nga Ringa Tota Inc [PDF, 271 KB] 
[Judgment of Chief Judge G L Colgan, 8 July 2014] PASSING ON – Remuneration increase paid to other employees exceeded that paid to equivalent unionised employees – Whether passing on breached collective agreement provision prohibiting automatic passing on of same terms and conditions to non-unionised employees – No breach of terms and conditions – Whether plaintiff in breach of s 9 of the Act by conferring preference on basis that employees on basis that they were not members of the defendant unions – Plaintiff in breach of s 9 – Compliance order an appropriate remedy - Plaintiff ordered to pay each employee member of the defendant unions the wage differential with 28 days of judgment – Plaintiff breached s 4 of the Act by misleading or deceiving the defendant unions as to its intentions for payments of remuneration increases – Plaintiff ordered to pay penalty of $5000.

[2014] NZEmpC 111 Bracewell v Richmond Services Ltd [PDF, 300 KB]
[Judgment of Judge B A Corkill, 1 July 2014] NON-PUBLICATION - An order of non-publication is made in respect of any confidential information which has been or is held by Ms Bracewell or any agent of hers; this order will include the confidential information relating to Client A as recorded in Ms Bracewell’s brief of evidence and in her submissions; and in the handwritten.

[2014] NZEmpC 92 H v A Ltd [PDF, 263 KB]
[Judgments of the Full Court] PROCEDURE – NON-PUBLICATION – Challenge to interim determination of Authority refusing to grant non-publication order in respect of plaintiff’s identity – Alleged that publication of plaintiff’s name would likely have adverse effect on plaintiff’s family, particularly the plaintiff’s son – Whether challenge to determination refusing non-publication a matter of “procedure” and therefore barred under s 179(5) of the Employment Relations Act 2000 – Policy underlying s 179(5) is to enable Authority to settle matters with limited judicial intervention – Balance to be struck with access to justice considerations – Authority’s determination has substantive effect which cannot otherwise be remedied on a challenge or by way of review – Challenge not barred – Whether interim non-publication orders should be granted – (Minority) Grant of non-publication order requires exceptional circumstances, evidence provided by plaintiff as to well-being of child falls short of disclosing risk of harm that would ordinarily justify the order – (Majority) Non-publication must be in the interests of justice, publication of information relating to proceeding which may cause harm to a child is a relevant consideration – Non-publication order made by the Court.

[2014] NZEmpC 25 Law v Board of Trustees of Woodford House [PDF, 518 KB]
[Judgment of Chief Judge Colgan, 17 February 2014] MINIMUM WAGE – Plaintiffs matrons or housemistresses at boarding school – Minimum Wage Act 1983 applies to salaried employees – Plaintiffs ‘working’ while undertaking overnight duties – If paid by the hour, plaintiffs entitled to be paid no less than minimum hourly rate set out in cl 4(c) of relevant Minimum Wage Order – If paid by salary, plaintiffs entitled to be paid no less than the minimum amount set out in cl 4(c) of the relevant Minimum Wage Order for each hour – Costs reserved.

[2014] NZEmpC 23 Greenslade v Jetstar Airways Limited [PDF, 293 KB]
[Judgment of the Full Court, 14 February 2014] REST AND MEAL BREAKS – Whether defendant has complied with statutory and contractual obligations to provide the plaintiff with rest breaks and meal breaks – Statutory entitlement contained under Part 6D of the Act – Contractual entitlement contained in cl 19 of the employment agreement – Whether defendant is exempt from requirements set out under s 69ZD of the Act because of s 69ZH(2) – There is a distinction between “rest periods” and “rest breaks” – Rest break is a break during a period of work – Rest period is a break between periods of work – CAO 48 and its exemption do not require pilots to take rest breaks – The term “enactment” under s 69ZH(2) must be a New Zealand enactment – Held that defendant has failed to comply with requirements set out under s 69ZD – Held that defendant has also breached cl 19 of employment agreement – Defendant relies on s 69ZH(2) again – Formula provided under s 69ZD was intended to apply – Court acknowledged practical consequences – Part 6D imposes minimum working conditions – The way in which the defendant has chosen to structure its operations does not justify a departure from these minimum statutory requirements – Claim for breach of good faith dismissed for lack of evidence – Plaintiff succeeds in claim for breach of employment agreement and s 69ZD of the Act – Issue of relief is deferred – Costs reserved.

[2014] NZEmpC 8 Nelson v Katavich [PDF, 49 KB]
[Second Interlocutory Judgment of Judge AA Couch, 3 February 2014] DISCLOSURE – Defendant objects to disclosure of banking and tax information sought by plaintiff – Documents relevant to establishing identity of plaintiff’s employer – Public interest in resolution of dispute outweighs privacy concerns – Common law privilege against self-incrimination continues to apply in Employment Court – No “real or appreciable risk” of self-incrimination – Challenge to objection succeeds – Defendant seeks further and better disclosure from plaintiff – Plaintiff’s obligations of disclosure encompasses defendant’s counter-claim – Application for further disclosure granted – Costs reserved.

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