Judgments of note 2016

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.


[2016] NZEmpC 175 Wikaira v The Chief Executive of Department of Corrections [PDF, 767 KB]
[2016] NZEmpC 175 Iona Wikaira v The Chief Executive of Department of Corrections (Judgment of Chief Judge G L Colgan, 20 December 2016) UNJUSTIFIED DISMISSAL – DISPARITY – CRIMINAL PROCEEDINGS – effect of guilty plea and discharge without conviction on employment – mistakes by employer in investigation and dismissal – bringing employer into disrepute considered - disparity with other breaches found – reinstatement ordered – compensation of $20,000 -  contribution by employee set at 15%.

[2016] NZEmpC 167 Labour Inspector v Tech 5 Recruitment Ltd [PDF, 250 KB]
[2016] NZEmpC 167 A Labour Inspector of the Ministry of Business, Innovation and Employment v Tech 5 Recruitment (Judgment of the Full Court, 16 December, 2016) PREMIUMS – whether employment agreements contained premium clause – s 12A Wages Protection Act – the meaning of “premium” defined – trade-testing costs were premium – employment agreements containing obligations to pay are “seeking a premium” – challenge successful.

[2016] NZEmpC 166 Alim v Sky Chefs NZ Ltd
(Interlocutory Judgment (No 22) of Judge B A Corkill, 14 December 2016) APPLICATION FOR JOINDER – history behind joinder proceedings surveyed – principles for awarding costs against non-parties considered – evidence linking third party to direct involvement in issues surrounding litigation – guiding mind – evidence of attempts to remove company from Register to avoid liability for costs – availability of security for costs not a reason to deny costs order against “real” party – third parties joined.

[2016] NZEmpC 161 New Zealand Airline Pilots’ Assoc Inc v Air New Zealand Ltd [PDF, 234 KB]
(Judgment of Judge Christina Inglis, 1 December 2016) CONTRACT INTERPRETATION – ESTOPPEL - effect of “downtraining” and contractual obligations – analysis of circumstances and history of relevant contractual clauses – consideration of principles of contractual interpretation – pilots employed as “pilots simpliciter” rather to particular positions – airline aimed to avoid redundancy  - estoppel considered – tests not met – challenge dismissed.

[2016] NZEmpC 158 Kidd v Beaumont [PDF, 460 KB]
(Judgment of Chief Judge G L Colgan, 28 November 2016) VOLUNTEER OR EMPLOYEE? - s 6 – meaning of ‘volunteer’ considered – case law considered - correct approach stated – plaintiff was employee - changing election to de novo challenge acceptable – identity of employer – no evidence to support unjustified or constructive dismissal – grievance claim dismissed.

[2016] NZEmpC 120 Whanau Tahi Ltd v Dasari [PDF, 211 KB]
(Judgment of Judge M E Perkins, 20 September 2016) UNJUSTIFIED DISMISSAL – FRUSTRATION OF CONTRACT – wage arrears reimbursed from funds paid into Court – variation of work visa – employment agreement not frustrated – agreement not found to be void for illegality – Immigration Act 2009 silent on breach of provisions rendering an employment agreement illegal – contributory conduct not found – plaintiff awarded three months lost wages and $10,000 compensation – defendant entitled to costs – costs reserved.(external link)

[2016] NZEmpC 117 New Zealand Meat Workers and Related Trades Union Incorporated v AFFCO New Zealand Limited
(Judgment (No 2) of Judge B A Corkill, 8 September 2016) WAGES – damages at common law – Wages Protection Act 1983 – application of s 11 to unlawful lockouts – re-engagement under collective agreement – unlawful deduction of wages is recoverable – circumstances of individuals to be assessed on a case by case basis – duty to mitigate does not arise.

[2016] NZEmpC 113 The Pulp and Paper Industry Council of the Manufacturing and Construction Workers Union v Oji Fibre Solutions (NZ) Ltd (Formerly Carter Holt Harvey Pulp and Paper Ltd) [PDF, 308 KB]
(Judgment of Judge M E Perkins, 31 August 2016) CONTRACT INTERPRETATION – STATUTORY INTERPRETATION – calculation of leave entitlements – relevant daily pay – payment of public holidays occurring within period of leave – costs reserved.

[2016] NZEmpC 112 Radius Residential Care Limited v The New Zealand Nurses Organisation Inc [PDF, 431 KB]
(Judgment of Chief Judge G L Colgan, 31 August 2016) STRIKE – AUTHORISED UNION MEETING – COLLECTIVE BARGAINING – employee actions not a union meeting – strikes found unlawful – standard of proof higher than balance of probabilities for statutory penalties – first and second defendants liable as parties to unlawful strike action – damages awarded – insufficient evidence for liability to penalties – breach of good faith obligations insufficient for penalties purposes – costs reserved.

[2016] NZEmpC 111 Maritime Union of New Zealand Inc v The China Navigation Company Pte Limited [PDF, 505 KB]
(Reasons for Judgment of Chief Judge G L Colgan, 29 August 2016) COLLECTIVE BARGAINING – LOCKOUT – offers of employment not on a take-it-or-leave-it basis – s 63A(2) complied with – s 82 definition of employee and employer includes prospective employees and employers –  s 82(1)(a)(iv) precondition not met – offer of employment on individual employment agreement does not constitute a lockout – two or more employees necessary for an effective collective agreement – two or more employees not necessary for initiation of collective bargaining – offer of employment transfer does not constitute current employee – collective bargaining initiated lawfully.

[2016] NZEmpC 97 Warren Banks v Hockey Manawatu Incorporated [PDF, 193 KB]
(Costs Judgment of Judge Corkill, 5 August) COSTS – principles considered – costs in the Authority should follow the event, based on notional daily rate – costs in the Court considered, including scale assessments and legal charges – Calderbank offers considered and principles applied – conduct of parties factored into costs assessment – allowance for GST – Court disbursements considered – defendant’s financial circumstances considered – total of $123,034.10 awarded.(external link)

[2016] NZEmpC 95 Fredrick Pretorius v Marra Construction (2004) Limited [PDF, 270 KB]
(Judgment of Judge B A Corkill, 2 August 2016) TIME LIMITATION – principles considered – whether an agreement for overtime or bonus payments existed – quantum meruit claims considered and principles applied – claims under the Minimum Wage Act 1983 and Holidays Act 1993 not statute barred.

[2016] NZEmpC 89 New Zealand Nurses Organisation v Waikato District Health Board [PDF, 198 KB]
(Judgment of Chief Judge G L Colgan, 12 July 2016) APPLICATION FOR RECALL/REHEARING – initial judgment dealt with individual case but not with independent challenge by organisation as to broader meaning of  collective agreement’s phrase “retiring from the organisation” – case law on recall and rehearing considered – grounds exist for rehearing of part of case –rehearing granted - questions for rehearing suggested.

[2016] NZEmpC 158 Kidd v Beaumont
(Judgment of Chief Judge G L Colgan, 28 November 2016) VOLUNTEER OR EMPLOYEE? - s 6 – meaning of ‘volunteer’ considered – case law considered - correct approach stated – plaintiff was employee - changing election to de novo challenge acceptable – identity of employer – no evidence to support unjustified or constructive dismissal – grievance claim dismissed.

[2016] NZEmpC 151 Carr, Labour Inspector v Sharma [PDF, 204 KB]
(Sentencing Notes of Judge M E Perkins, 17 November 2016) OBSTRUCTING A LABOUR INSPECTOR – GUILTY PLEA – SENTENCING – s 235 charge - guilty plea entered  –criminal jurisdiction of Employment Court and Sentencing Act applies – principles of sentencing applied –factors to be considered in discharge without conviction – discharge without conviction - $500 towards costs ordered against defendant.

[2016] NZEmpC 143 Jeanie May Borsboom (Labour Inspector) v Preet PVT Limited and Another
(Judgment of the Full Court, 4 November 2016) PENALTIES – BREACH OF MINIMUM CODE – breach of minimum entitlements – breach of statutory requirements – legislative history considered – objectives of penalties discussed – whether penalty principles for breach of statute or contract differ – whether financial circumstances of defendants are relevant – whether separate or global penalties for multiple breaches - multi-step approach to penalties applied – penalties of $40,000 and $60,000 imposed on first and second defendants.

[2016] NZEmpC 136 Xtreme Dining Ltd t/a Think Steel v Dewar [PDF, 391 KB]
(Judgment of the Full Court, 31 October 2016) UNJUSTIFIABLE DISMISSAL – CAUSATION – MITIGATION – CONTRIBUTION – NON-DE NOVO – principles of mitigation considered – review of extent of contribution under s 124 – history of s 124 surveyed – not intended to allow extinguishing of remedies –50% reduction is significant – s 123 assessment may result in no remedy awarded where behaviour particularly egregious – compensation reduced from $12,000 to $10,000.

[2016] NZEmpC 137 Bennett and Others v Michaels and Others [PDF, 179 KB]
(Judgment of Judge M E Perkins, 28 October 2016) CORPORATE VEIL – principles applied – corporate veil lifted to hold individual personally liable – order to pay lost wages

[2016] NZEmpC 135 Nathan v Broadspectrum [PDF, 180 KB]
(Judgment of Judge K G Smith, 28 October 2016) REINSTATEMENT – COSTS – company agreed to reinstatement but not to former position – costs had not been claimed on statement of problem – meaning of reinstatement under s 123(1)(a) clarified  – Authority wrong to accept company’s view that reinstatement should be to a different position no less advantageous – order for reinstatement to former position but in staged manner – costs do not need to be claimed to be awarded – costs of $7,000 ordered.

[2016] NZEmpC 86 Radius Residential Care Ltd v The New Zealand Nurses Organisation Inc [PDF, 182 KB]
(Interlocutory Judgment of Chief Judge G L Colgan, 6 July 2016) DISCLOSURE - SELF-INCRIMINATION IN PROCEEDINGS WHERE ORDERS SOUGHT INCLUDE PENALTIES – Reg 39(2) of the Employment Court Regulations precludes inter-party document disclosure where penalties are sought - no need to separate penalty from other proceedings - decided cases under reg 39(2) considered - common law privilege against self-incrimination in civil penalty cases exists - Court should examine documents to ensure there is no self-incrimination - directions given accordingly.

[2016] NZEmpC 7 New Zealand Meat Workers& Related Trades Union Inc v AFFCO New Zealand Ltd [PDF, 372 KB]
(Judgment of Judge B A Corkill, 11 February 2016) APPLICATION FOR COMPLIANCE ORDERS – return-to-work arrangements– matter of statutory interpretation - company ordered to re-engage ‘based-on iea’ workers on day shift before night shift as required by seniority provision – infringement of s 97 – company given time-limited opportunity to meet obligations– issue of compliance order adjourned – calculation of loss of remuneration to be by joint memoranda – eligibility of 5 persons – leave to apply for directions reserved.

[2016] NZEmpC 2 Northern Amalgamated Workers’ Union of New Zealand Inc v Fletcher Concrete and Infrastructure Ltd t/a Golden Bay Cement [PDF, 205 KB]
(Judgment of the Full Court, 1 February 2016) DE NOVO CHALLENGE - SECTION 9 EMPLOYMENT RELATIONS ACT 2000 - whether provision in collective employment agreement (CEA) conferred unlawful preference on members of the Union – whether a provision is unlawful that provides that vacancies will first be opened to permanent employees covered by the CEA – intention was to recognise benefits of a CEA or benefits arising out of relationship on which CEA was based rather than union membership - provision recognised benefits which could only be achieved through a CEA and the relationship arising from such an agreement - unions and employers free to negotiate and agree upon terms and conditions in a CEA which might otherwise infringe upon prohibition on preference – challenge successful - costs reserved.

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