Judgments of note 2018

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.


Decisions of Note:

[2018] NZEmpC 160 Kaikorai Service Centre Ltd v First Union Inc [PDF, 418 KB] (Judgment of Judge K G Smith, 20 December 2018) COLLECTIVE BARGAINING – whether refusing to bargain collective about wages is a breach of good faith – whether large inflatable rat is breach of good faith by union – whether wage scale must be included in collective agreement – Act does not require wages to be included –duty of good faith does not mean wage scale must be included – no breach of good faith – inflatable rat an exercise of free speech – no defamation – not a breach of good faith.

[2018] NZEmpC 154 TUV v WXY [PDF, 512 KB] (Judgment of Chief Judge Christina Inglis, 18 December 2018) SECTION 149 SETTLEMENT AGREEMENT – MENTAL INCAPACITY – whether s 149 prevents an agreement being invalidated for mental incapacity – purpose and legislative history of s 149 discussed – s 149 not unassailable – difference between protection of agreed terms and validity of agreement as a whole – employee was mentally incapable – employer did not know – no unconscionability – no duress – s 149 agreement not set aside – non-publication orders – public interest in parties’ identities – agreement for confidentiality relevant but not decisive – defendant name to be published but plaintiff not.

[2018] NZEmpC 151 Ovation New Zealand Ltd v The New Zealand Meat Workers and Related Trades Union Inc [PDF, 1.3 MB] (Judgment of Judge B A Corkill, 17 December 2018) PIECE WORK - REST BREAKS – WHETHER DONNING AND DOFFING IS WORK - case law considered – S 69ZD(3) starting-point –entitlement to be paid – Part 6D does not specify means or method – incorporating paid rest breaks into piece rates is lawful – onus on employer to establish rest breaks paid at correct rate - no evidence paid rest breaks included in CEA or historically – no compliance with statutory requirement – donning and doffing time is work, currently not paid – any remedies must be specifically pleaded.

[2018] NZEmpC 138 Samuels v Employment Relations Authority [PDF, 295 KB] (Judgment of Chief Judge Christina Inglis, 21 November 2018) STANDING TO BRING JUDICIAL REVIEW – interpretation of s 184(1) and s 184(1A) – whether breach of natural justice grounds for judicial review – approach to ouster clauses considered – David and Parker considered – Parker distinguished – plaintiff has standing -challenge not possible – judicial review can be brought for alleged breach of natural justice where other avenues are closed.

[2018] NZEmpC 123 Roach v Nazareth Care Charitable Trust Board [PDF, 567 KB] (Judgment of Judge K G Smith, 19 October 2018) UNJUSTIFIED DISMISSAL – 90-DAY TRIAL – DEFINITION OF EMPLOYEE – whether second employment agreement contained invalid trial period as plaintiff had been previously employed in first agreement – purpose of trial period is to observe work – second trial period valid – dismissal without notice did not comply with s 67B(1) – unjustifiable dismissal found – remedies of 12 months’ salary, compensation of $25,000.

[2018] NZEmpC 113 Richora Group Ltd v Cheng [PDF, 396 KB] (Judgment of Chief Judge Christina Inglis, 26 September 2018) UNJUSTIFIABLE CONSTRUCTIVE DISMISSAL – no employment agreement until point of dismissal – no process for investigating allegation – post-employment actions of employer –three months lost remuneration plus unpaid wages ordered – factors in assessing quantum of compensation considered – high end harm - greater compensation than claimed could not be awarded – $20,000 ordered in favour of defendant.

[2018] NZEmpC 110 A Labour Inspector v Prabh Ltd [PDF, 508 KB] (Judgment of Judge M E Perkins, 24 September 2018) BREACH OF MINIMUM STANDARDS – PENALTIES – serious breaches – vulnerable employees – immigration issues – principles applying to calculation of penalties – Preet method followed – pre-and post-April 2016 not treated differently – importance of deterrence – banning orders not imposed – penalties against company - $100,000; against directors - $16,000 each. - $10,000 direct to each employee, otherwise to Crown.

[2018] NZEmpC 84 GSTech Ltd v A Labour inspector of the Ministry of Business, Innovation and Employment [PDF, 285 KB] (Judgment of Chief Judge Christina Inglis, 25 July 2018) JURISDICTION – Labour Inspector may pursue claims on behalf of employees under Minimum Wage Act or Holidays Act only – employee must pursue claim for recovery of wages or breach of employment agreement.

[2018] NZEmpC 83 Kaikorai Service Centre Ltd v First Union Inc [PDF, 904 KB] (Interlocutory Judgment of Judge K G Smith, 23 July 2018 DISCLOSURE – document related to bargaining – public interest considered – legal privilege does not apply to advocates

[2018] NZEmpC 79 Hines v Eastland Port Ltd [PDF, 513 KB] (Judgment of Judge J C Holden, 16 July 2018) UNJUSTIFIED DISMISSAL FOR SERIOUS MISCONDUCT – Maritime Transport Act 1994 and Maritime Rules – ship without a “pilot” -  employee put under supervision by other employee – whether acting on an honest but mistaken belief is misconduct – employee was employed for expertise and should have understood obligations – open to find serious misconduct –investigation sufficient – defects in the process were inconsequential – no unfairness in the investigation –no unjustified dismissal - ordering supervision by other employee a minor breach – no unjustified disadvantages – whether employer should indemnify employee’s costs – no remedies awarded.

[2018] NZEmpC 74 Pitman v Advanced Personnel Services Ltd [PDF, 288 KB] (Interlocutory Judgment of Judge K G Smith, 2 July 2018) APPLICATION FOR STAY OF EXECUTION – breach of employment agreement – whether certificate of judgment in District Court removes jurisdiction of Employment Court – Court retains jurisdiction – factors to be considered in granting of a stay considered - application dismissed.

[2018] NZEmpC 69 A Labour Inspector v Sampan Restaurant Ltd [PDF, 343 KB] (Judgment of Judge M E Perkins, 21 June 2018) APPORTIONMENT OF PENALTY FOR BREACH OF EMPLOYMENT STANDARDS – FACTORS TO BE CONSIDERED – these questions referred by Authority under s 177 – where penalty against employer for breach of employment standards, and against person involved –questions of law  – comparison with other Acts –  deterrence a major factor - actions of employer and actions of person involved are considered separately – no formulaic answer - fairness and justice to be considered – discretion to be exercised based on facts in each case.

[2018] NZEmpC 67 Wendco (NZ) Ltd v Unite Inc. [PDF, 322 KB] (Reasons for Oral Judgment of Judge B A Corkill, 12 June 2018) APPLICATION FOR INTERIM INJUNCTION – JURISDICTION – PICKETING – difference between picketing and strike – distinguished in statute – history of s 99 considered  - inherently unlikely Parliament intended total ban on tortious proceedings in the case of picketing- tort of trespass established – other torts not established – health and safety issues – balanced with right to free speech and assembly – interim injunction granted.

[2018] NZEmpC 47 New Zealand Nurses Organisation v Waikato District Health Board [PDF, 366 KB] (Judgment of the full Court, 15 May 2018) CONTRACT INTERPRETATION – eligibility for retiring gratuity – meaning of “retirement from the organisation”– history of grandparenting clause examined – must be more than moving on – intention to retire from regular paid work – challenge unsuccessful.

[2018] NZEmpC 45 Performance Cleaners All Property Services Wellington Ltd v Chinan [PDF, 427 KB] (Costs Judgment of Judge B A Corkill, 11 May 2018) COSTS – challenge to costs determination - jurisdiction to award costs when the matter is outside jurisdiction – costs within jurisdiction – costs of  $33,739 ordered plus disbursements.

[2018] NZEmpC 43 A Labour Inspector of the Ministry of Business, Innovation and Employment v Smiths City Group Ltd [PDF, 503 KB] (Judgment of the Full Court, 8 May 2018) COMPLIANCE WITH MINIMUM WAGE ACT – NATURE OF ‘WORK’ – COMMISSIONS - are pre-work meetings regarded as work for purposes of Minimum Wage Act? – tests in Idea Services applied – test of whether attendance “integral” to work – meetings are work – whether commissions included as part of assessment of hourly wage – not to be included.

[2018] NZEmpC 40 Johnston v The Fletcher Construction Co Ltd [PDF, 262 KB] (Interlocutory Judgment of Chief Judge Christina Inglis, 4 May 2018) DIRECTION TO MEDIATION – PRIVATE MEDIATOR – whether jurisdiction of Court allows direction to private mediation – not accepted – parties directed to MBIE mediation.

[2018] NZEmpC 33 Nisha Alim v LSG Sky Chefs New Zealand Ltd [PDF, 289 KB] (Costs Judgment (No 2) of Judge B A Corkill, 18 April 2018) COSTS – whether successful party should be awarded costs with regard to advancing of the applications –costs on costs awards may be made – costs consequences of Calderbanks extend to parties joined to litigation but not to those not involved in some hearings – hearing costs broken down -percentage costs distributed between four parties.

[2018] NZEmpC 26 A Labour Inspector v Victoria 88 Ltd t/a Watershed Bar and Restaurant [PDF, 484 KB] (Judgment of Judge B A Corkill, 26 March 2018) BREACH OF MINIMUM ENTITLEMENTS – PENALTIES – BANNING ORDER – consent of parties to orders – history of multiple proceedings surveyed – some mitigating factors - banning orders made – pecuniary penalties of $20,000 ordered, part to be paid to named individuals.

[2018] NZEmpC 20 Smith v Director General of the Ministry for Primary Industries [PDF, 282 KB] (Judgment of Judge K G Smith, 16 March 2018) UNJUSTIFIED DISMISSAL – DISPARITY – relevant case law considered – dismissal process not unfair – no disparity of process or outcome – mitigating factors not present – decision to dismiss fair and reasonable.

[2018] NZEmpC 19 Kumara Hotel Ltd v McSherry (Judgment of Chief Judge Christina Inglis, 15 March 2018) UNJUSTIFIED DISMISSAL – 90-DAY TRIAL PERIOD – unfair bargaining not found – defendant previously employed by virtue of first employment agreement – 90-day trial provision ineffective in subsequent agreement – unjustified dismissal found – lost wages and $11,900 compensation awarded.

[2018] NZEmpC 16 Nathan v Broadspectrum (New Zealand) Ltd [PDF, 293 KB](Judgment of Judge K G Smith, 12 March 2018) BREACH OF COMPLIANCE ORDER – FINE – reinstatement – plaintiff rostered on training course prior to resuming active duties – technical breach of compliance order found – fine inappropriate.

[2018] NZEmpC 8 Nisha v LSG Sky Chefs New Zealand Ltd [PDF, 1.4 MB] (Costs Judgment (No 1) of Judge B A Corkill, 23 February 2018) COSTS IN RELATION TO MULTIPLE JUDGMENTS – LIABILITY FOR COSTS - Calderbank offers unreasonably rejected – each of 19 interlocutory judgments dealt with separately – range from small costs in favour of plaintiff to indemnity costs in favour of defendant – other costs detailed – increased costs justified – adjustment for plaintiff’s modest success - GST not allowed for – total costs to defendant more than $198, 000– question of liability - plaintiff in person to pay $10,000 - non-party funding considered– personal liability of non-party as impropriety shown – joint and several liability found – costs in Authority to be paid by plaintiff personally - $10,500; non-party personally to pay $19, 164.89; funding parties to pay jointly and severally over $166,000.

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