Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

[2016] NZEmpC 87 Kupa v Silver Fern Farms Beef Ltd (Judgment of Judge B A Corkill, 7 July 2016) UNJUSTIFIABLE DISMISSAL – whether refusal to follow instruction was health and safety issue or unreasonable – issue of credibility – whether instruction reasonable – test considered – instruction reasonable – warning would have been appropriate – collective agreement supported alternatives to dismissal – dismissal not justifiable – reinstatement ordered – 50% contributory conduct  - 3 months’ wages - $14,000 compensation reduced to $7,000.

[2016] NZEmpC 86 Radius Residential Care Ltd v The New Zealand Nurses Organisation Inc (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 83 Savage v Capital & Coast District Health Board (Judgment of Judge B A Corkill, 30 June 2016) CASUAL OR PERMANENT EMPLOYEE – legal tests considered - employment offer for casual employee– contract interpretation – clear definition of casual and permanent in MECA - nature of employment relationship in practice examined – challenge failed.

[2016] NZEmpC 81 Eden Group Ltd v Jackson (No 3) Judgment of Chief Judge G L Colgan

[2016] NZEmpC 79 Alpha Laboratories (NZ) Ltd v La (Consent Judgment of Judge M E Perkins, 22 June 2016) CONSENT – terms of settlement agreed – Authority determinations set aside.

[2016] NZEmpC 77 Nisha Alim v LSG Sky Chefs New Zealand Ltd (Interlocutory Judgment No 20 of Judge B A Corkill, 20 June 2016) COSTS – DISCLOSURE – JOINDER – disclosure order for costs purposes – third-party funder – litigation funding – abuse of process – discovery and privilege – proceedings – disclosure of litigation funding agreement – financial statements.

[2016] NZEmpC 75 Bhikoo v Stephen Marr Hair Design Newmarket Ltd (Costs Judgment of Judge M E Perkins, 16 June 2016) COSTS – defendant’s costs reasonable – comparison with Court’s Guideline Scales – offer to settle not accepted, leading to increased costs – Authority order of costs to stand - $4,000 – further costs of $20,000 awarded against plaintiff.

[2016] NZEmpC 74 Tairawhiti District Health Board v New Zealand Nurses OrganisationInc (Judgment of Judge G L Colgan, 14 June 2016) INTERPRETATION OF MECA – which date constitutes “anniversary date” of commencement of employment when employee transfers between DHBs – effect on service-related  entitlements – examination of series of collective agreements and extrinsic materials – “anniversary date” held to be date of initial employment when service is regarded as continuous – recommendation that DHBs make this clear on appointment – good faith requires the parties not doing anything that would mislead or deceive the other – obiter pointing out ambiguity in contract clause.

[2016] NZEmpC 72 Eden Group Ltd v Jackson (Oral Judgment (No 2) of Chief Judge G L Colgan, 10 June 2016) SEARCH AND FREEZING ORDERS – proceedings consolidated – removal of substantive proceedings – orders regarding discovery and privilege made –freezing orders continued temporarily to enable undertakings to be given.

[2016] NZEmpC 69 Caffe Coffee (NZ) Ltd v Farrimond (Supplementary Judgment of Judge B A Corkill, 9 June 2016) NON-PUBLICATION ORDER – CONFIDENTIAL INFORMATION – public version of judgment issued.

[2016] NZEmpC 67 Bay of Plenty District Health Board v Rahiri (Oral Judgment of Chief Judge G L Colgan, 2 June 2016) EMPLOYMENT STATUS – UNJUSTIFIABLE DISMISSAL– whether defendant was casual employee – consequences of that status very fact-specific – whether availability for work was within defendant’s control – defendant was casual employee – unjustifiably dismissed – awards at Authority upheld – plaintiff to indemnify Legal Services Agency for costs.

[2016] NZEmpC 65 Caffe Coffee (NZ) Ltd v Farrimond (Judgment of Judge B A Corkill, 2 June 2016)BREACH OF CONTRACT – USE OF CONFIDENTIAL INFORMATION – PENALTY – whether preparatory steps in setting up a new business were legitimate – whether defendant concerned in a business – employee duty to report to employer – whether confidential information used in new business – duty of fidelity – duty of good faith – contract interpretation – causation and damages.