Judgments of note 2017

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.


[2017] NZEmpC 164 New Zealand Public Service Assoc Te Pukenga Here Tikanga Mahi v Commissioner and Chief Executive Inland Revenue Department Te Tari Taake [PDF, 519 KB] (Judgment of Judge B A Corkill, 21 December 2017) REPRESENTATION –whether defendant breached ss 32 and 236 when negotiating directly with individuals over restructured positions -  s 32 does not apply as issue relates to a change process, not collective bargaining – Part 6 applies, not Part 5 – s 236 breached - defendant should have dealt with union as instructed by members – good faith obligations apply – union’s challenge succeeds.

[2017] NZEmpC 157 Johnston v The Fletcher Construction Co Ltd [PDF, 375 KB] (Judgment of Chief Judge Christina Inglis, 11 December 2017) REMOVAL OF PROCEEDINGS – EXTENSION OF TIME TO CHALLENGE – whether s179 or s 178(3) available when Authority declines application to remove – statutory interpretation – s 178(3) appropriate route – Act does not contemplate two alternative routes for challenge - questions as formed at Authority do not constrain applicant or Court – no presumption for or against removal to Court-  what constitutes important issue of law considered - important of law established -  application granted.

[2017] NZEmpC 156 Coomer v JA McCallum and Son Ltd [PDF, 309 KB] (Judgment of Judge K G Smith, 8 December 2017) COSTS – SUCCESSFUL PARTY – unjustified disadvantage claim successful at Authority – constructive dismissal claim dismissed – wages claim unsuccessful – successful party awarded costs but reduced to recognise partial lack of success – plaintiff achieved success only through lodging claim – amount reduced to reflect partial success of defendant - $4500 awarded to plaintiff.

[2017] NZEmpC 152 Performance Cleaners All Property Services Wellington Ltd v Chinan [PDF, 546 KB] (Judgment of Judge B A Corkill, 1 December 2017) STRIKE-OUT APPLICATION – ABUSE OF PROCESS –  JURISDICTION - claim fails to meet criteria for strike-out – evidence not persuasive on abuse of process – but strike-out claim succeeds through lack of jurisdiction.

[2017] NZEmpC 150 Prasad v LSG Sky Chefs New Zealand Ltd [PDF, 492 KB] (Judgment of the Full Court, 29 November 2017) LABOUR-HIRE AGENCY – TRIANGULAR RELATIONSHIPS - identity of employer – consideration of development of labour-hire arrangements and potential issues - s 6 analysis appropriate –formal contract a relevant factor only - test is real nature of the relationship – common law tests applied – contract of service declared.

[2017] NZEmpC 132 Waikato District Health Board v Archibald [PDF, 457 KB] (Judgment of Chief Judge Christina Inglis, 31 October 2017) UNJUSTIFIABLE DISMISSAL – whether employee entitled to severance payment when role changed to require 2 hours and 45 minutes a day of travel – arrangement was only temporary – travel was only during work hours – concerns about health and safety impacts – whether s 103(3) applies to exclude this from personal grievance procedures – insufficient consultation – travel requirements meant that the role was on less favourable terms – age of employee not to be taken into consideration – severance payment ordered in accordance with MECA – dismissal was unjustified –  compensation awards under s 123(1)(c)(i) discussed - “bands” approach created to measure appropriate compensation - $20,000 awarded for compensation.

[2017] NZEmpC 130 ALA v ITE (Oral Judgment (No 3) of Judge B A Corkill, 26 October 2017) BREACH OF COMPLIANCE ORDER – SANCTIONS – whether imprisonment appropriate – deliberate continuous and flagrant disregard of Court’s compliance orders – no steps taken to remedy the breach – need for deterrence of wilfully disobedient conduct considered – case law examined – defendant sentenced to a term of imprisonment of 21 days – committal order made under s 37(4) Corrections Act 2004 – permanent non-publication orders made – indemnity costs of $49,164 awarded.

[2017] NZEmpC 120 Judea Tavern Ltd v Jesson [PDF, 158 KB] (Costs Judgment of Chief Judge Christina Inglis, 3 October 2017) COSTS – GST considered – a factor in determining whether uplift appropriate – reasonable costs in Authority can be determined by Court – costs of $8,625 on challenge, and $5,175 in Authority awarded against plaintiff.

[2017] NZEmpC 118 Nathan v Broadspectrum (New Zealand) Ltd (formerly Transfield Services (New Zealand) Ltd) [PDF, 380 KB] (Costs Judgment of Judge K G Smith, 29 September 2017) COSTS – starting point is Guideline Scale, not actual costs – indemnity costs appropriate – costs of $25,300 plus disbursements awarded; plus costs of further proceeding and for seeking further orders; and for stay application – total of $48,272.13.

[2017] NZEmpC 117 Underhill v Coca-Cola Amatil (NZ) Ltd [PDF, 429 KB] (Judgment of Judge M E Perkins, 28 September 2017) UNJUSTIFIED DISMISSAL – WHETHER GRIEVANCE RAISED OUT OF TIME – performance issues while employed – dismissal - consideration of when grievance was raised – 90 days started when written notice of termination provided, giving reasons– grievance raised within time – procedural defects – unjustified dismissal – reinstatement not practicable or reasonable- $1,200 awarded to each plaintiff – reduced by 25% for contribution.

[2017] NZEmpC 115 Schollum v Corporate Consumables Ltd [PDF, 598 KB] (Judgment of Judge K G Smith, 27 September 2017) HOLIDAY PAY – commission excluded from calculation – consideration of statutory interpretation – law on interpretation of Holidays Act considered -  whether agreement to pay was reached – estoppels principles considered -  liability only, not quantum, established in this judgment – defendant liable for arrears for breaches of Holidays Act.

[2017] NZEmpC 97 Nel v ASB Bank Ltd [PDF, 216 KB] (Interlocutory Judgment (No 2) of Judge B A Corkill, 10 August 2017) DISPARITY – STAY OF DISCOVERY ORDERS – STRIKE-OUT – authorities on disparity surveyed – “truly parallel circumstances” considered – analysis of disparity case-specific – standard of “sufficient similarity” – strike-out application dismissed - whether orders for discovery should be stayed pending outcome of appeal – orders stayed.

[2017] NZEmpC 95 Fraser v McDonalds and Doran v Carrick [PDF, 355 KB] (Judgment of the Full Court, 4 August 2017) SECTION 67D AVAILABILITY PROVISION – whether ‘flexible shift’ arrangement was availability clause – IEAs included mix of secure and ‘flexible hours based on availability – on facts, mutuality of obligations - not one-sided – therefore clause did not meet requirements of s 67D. 

[2017] NZEmpC 92 P v A [PDF, 111 KB] (Interlocutory Judgment of Judge M E Perkins, 28 July 2017) LEAVE TO EXTEND TIME TO FILE STATEMENT OF DEFENCE – case law examined – relevant principles considered – close consideration of merits unwarranted due to administrative error – application granted.

[2017] NZEmpC 89 Hynds Pipe Systems Ltd v Forsyth [PDF, 304 KB] (Interlocutory Judgment of Full Court, 20 July 2017) CONTEMPT– delay in complying with ‘without notice’ search orders – whether Court has power to punish for contempt not committed in the face of the Court where compliance provisions not available – implied statutory jurisdiction and inherent powers considered – statutory scheme examined – residual power to punish for contempt preserved by statute – power sufficiently connected to Court’s powers and duties may be implied where not excluded by legislation – High Court’s parallel power does not displace power of Employment Court –  Court's power to punish for contempt established.

[2017] NZEmpC 88 AFT [PDF, 88 KB] in the matter of an application for access to Court documents (Judgment by Judge M E Perkins, 19 July 2017) ACCESS TO COURT DOCUMENTS – application for access to Court file by applicant who is not a party to those proceedings – grounds for application considered – High Court rules considered – relevant factors considered – application declined.

[2017] NZEmpC 71 Stormont v Peddle Thorp Aitken Ltd [PDF, 497 KB] (Judgment of Judge Christina Inglis, 6 June 2017) BONUS – CONTRACT – REDUNDANCY - HURT AND HUMILIATION – bonus to be calculated according to terms of contract – no estoppel existed – employer breach of good faith in relation to bonus and redundancy – penalty imposed – penalty quantum surveyed – special damages awarded – meaning of “humiliation, loss of dignity an injury to feelings” considered – compensation quantum surveyed – unpaid bonus, special damages and lost remuneration ordered with holiday pay and interest - $25,000 compensation.

[2017] NZEmpC 70 Edminstin v Sanford Ltd [PDF, 515 KB] (Judgment of Chief Judge G L Colgan, 6 June 2017) INTELLECTUAL PROPERTY – CONTRACT – ownership of “marks” in identifying oyster beds – traditional custom and practice and its place in law considered – “marks” belong to skippers – not overridden by employment agreement – distinguished from JP Morgan – history of “marks” surveyed – ownership of “marks” exclusive to plaintiff - breach of  property rights not proven.

[2017] NZEmpC 69 8i Corporation v Marino [PDF, 156 KB] (Judgment of Judge Christina Inglis, 6 June 2017) SECTION 149 – PENALTY CLAUSE – whether term of mediator-signed agreement can be challenged subsequently on grounds of unlawfulness, or whether such scrutiny is precluded by s 149(3) – “enforcement purposes” interpreted - Court may look into lawfulness of a term on public policy grounds.

[2017] NZEmpC 56 Nel v ASB Bank Ltd [PDF, 179 KB] (Interlocutory Judgment of Judge B A Corkill, 16 May 2017) DISCOVERY – relevance and scope considered – categories of document listed - challenge to defendant’s objections successful – inspection of documents ordered.

[2017] NZEmpC 55 Kaipara District Council v McKerchar [PDF, 176 KB] (Judgment of Chief Judge G L Colgan, 12 May 2017) SETTLEMENT AGREEMENT – STRIKE-OUT APPLICATIONS – JURISDICTION – law on compromise agreements considered and applied - law on strike-out – contra proferentum  – time-frame for penalty action lapsed – defendant’s claim struck out for want of jurisdiction – plaintiff’s claim precluded by terms of settlement agreement – struck out. 

[2017] NZEmpC 47 Singh v Trustees of the Wellington Rudolf Steiner Kindergarten Trust [PDF, 104 KB] (Judgment of Judge M E Perkins, 8 May 2017) SETTLEMENT AGREEMENT– whether terms of agreement precluded raising of employment problem – at point of sign-off, plaintiff withdrew agreement – whether parties bound to agreement absent mediator sign-off  - equitable estoppel applies  - plaintiff precluded from pursuing claims – challenge dismissed.

[2017] NZEmpC 41 Cronin-Lampe v The Board of Trustees of Melville High School [PDF, 211 KB] (Interlocutory Judgment of Judge M E Perkins, 26 April 2017) APPLICATIONS FOR LEAVE TO RAISE PERSONAL GRIEVANCES OUT OF TIME AND TO BRING PROCEEDINGS – amended statement of claim to be accepted subject to further amendment - common law proceedings under s 4(7) Limitation Act 1950 for bodily injury – reasonable discovery – mistake of law –prejudice – leave granted on basis that delay occasioned by mistake of law and other reasonable cause – other action to be deferred to hearing.

[2017] NZEmpC 40 XYZ v ABC [PDF, 271 KB] (Judgment of Judge Christina Inglis, 12 April 2017) APPLICATIONS FOR INTERIM REINSTATEMENT, INTERIM NON-PUBLICATION – principles for interim reinstatement applied – application declined – recent case law considered – stringent approach required – interim non-publication granted.

[2017] NZEmpC 39 ALA v ITE [PDF, 317 KB] (Judgment of Judge B A Corkill, 12 April 2017) BREACH OF COMPLIANCE ORDER – SANCTIONS – whether defendant failed to comply with compliance order – how to assess public interest justification – principles of comity applied – one breach found – fine of $7,500 – permanent non-publication orders made.

[2017] NZEmpC 35 Ahuja v Labour Inspector, Ministry of Business, Innovation and Employment (Interlocutory Judgment (No 2) of Chief Judge G L Colgan, 30 March 2017) CHALLENGE  – AUTHORITY AWARDED PENALTY OF ITS OWN MOTION – REPRESENTATION - whether Authority should appear when not a party to plaintiff’s challenge – whether independent counsel to be appointed – Labour Inspector not appropriate defendant in every case but appropriate  where party to challenge and willing participant – costs to be met out of public funds.

[2017] NZEmpC 30 Lumsden v Skycity Management Ltd [PDF, 222 KB] (Judgment of Judge Christina Inglis, 14, March 2017) BREACHES OF s 149 AGREEMENT – confidential terms agreed  - no conflict between s 149 and s 238 – defendant breached non-disparagement clause – penalties sought for breach – recent case law considered – penalty of $7,500 ordered, with 75% to plaintiff.

[2017] NZEmpC 23 Domingo v Suon and Heng (t-a Town and Country Food) [PDF, 178 KB] (Judgment of Judge Christina Inglis, 7 March 2017) COMPLIANCE ORDER – defendant failed to comply with Authority’s compliance order – whether Employment Court has jurisdiction to impose a sanction under s 140(6) where enforcement may be sought in District Court – set-off claim prohibited by minimum code statutes – jurisdiction found – defendant fined $11,000 – part-payment of  $6,600 to plaintiff – plaintiff entitled to costs.

[2017] NZEmpC 15 Spotless Facility Services NZ Ltd v Mackay [PDF, 143 KB] (Judgment (No 2) of Judge B A Corkill, 22 February 2017) DISADVANTAGE GRIEVANCE – s 122 considered – adequacy of investigation of stress issues – lack of response to raising of concerns – unjustified disadvantage under s 122 found – compensation of $2000 awarded.

[2017] NZEmpC 12 Stormont v Peddle Thorp Aitken Ltd [PDF, 193 KB] (Interlocutory Judgment of Judge Christina Inglis, 16 February 2017) APPLICATION FOR LEAVE TO RESPOND OUT OF TIME – whether plaintiff obliged to file a reply to defendant’s positive defence – whether leave should be granted to extend the time to file reply – application of High Court Rules to positive defences – High Court Rules held to apply – overall interests of justice considered – application to extend time for filing reply to defendant’s positive defence granted.

[2017] NZEmpC 11 Matsuoka v LSG Sky Chefs New Zealand Ltd [PDF, 173 KB] (Interlocutory Judgment of Judge M E Perkins in respect of 1) Application for wasted costs order; 2) first amended application for further and better discovery in respect of electronic documents etc, 15 February 2017) APPLICATION FOR WASTED COSTS ORDER – APPLICATION FOR FURTHER AND BETTER DISCOVERY – prior hearing concerning outstanding applications adjourned due to amended statement of claim – wasted costs could have been avoided by informing opposing counsel and Court of amended pleadings – $10,000 wasted costs ordered against plaintiff –case law and factors relevant to further discovery considered – existence of further documents speculative – discovery process disproportionate to claim – plaintiff’s further discovery application declined – further particular discovery of certain documents ordered.

[2017] NZEmpC 10 Xtreme Dining t/a Think Steel v Dewar [PDF, 107 KB] (Costs Judgment of the Full Court, 14 February 2017) COSTS – test case – Calderbank offer – GST considered – actual costs appropriate – plaintiff to pay costs of $25.031.16

[2017] NZEmpC 6 Lyttelton Port Company Ltd v Maritime Union of New Zealand Inc [PDF, 183 KB] (Judgment of Judge B A Corkill, 31 January 2017) INTERIM INJUNCTION - SECRET BALLOT– whether ballot taken by union complied with s 82A – was general or specific motion required? – Parliamentary background to s 83A considered – dicta on “arguable case” and “onus” – more than speculative evidence required – application unsuccessful.

[2017] NZEmpC 4 Marx v Southern Cross Campus Board of Trustees [PDF, 137 KB] (Judgment of Judge Christina Inglis, 27 January 2017) APPLICATION FOR REHEARING – application filed out of time – application could reasonably have been made sooner – grounds for application considered – relevant principles considered – grounds for a rehearing not established – application declined.

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