Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

The application for leave to appeal against the judgment of the Employment Court in New Zealand Meat Workers & Related Trades Union Inc v AFFCO New Zealand Ltd is granted, 13 April 2016

[2016] NZEmpC 36 Western Bay of Plenty DHB v McInnes - judgment of Judge C Inglis (Judgment of Judge Inglis of 13 April 2016) INTERIM REINSTATEMENT – principles applying to interim reinstatement – arguable case found – balance of convenience and overall justice favoured plaintiff – interim reinstatement declined.

[2016] NZEmpC 33 Lewis v JPMorgan Chase Bank N.A (Costs judgment of Chief Judge GL Colgan of 7 April 2016) COSTS ON APPLICATION FOR STRIKE-OUT –settlement offers did not address reputational issues– not a test case or novel point of law – ability to pay has never been a decisive factor – no factors justifying uplift –reasonable costs in this case ($50,000) were less than actual costs – comparison of High Court cost scale, Employment Court pilot scale and two-thirds assessment –similar result – costs of $36,667 plus disbursements awarded to defendant

[2016] NZEmpC 24 Myatt (Labour Inspector)  v Pacific Appliances Limited -(Judgment of Judge M E Perkins, 21 March 2016) FAILURE TO COMPLY WITH ORDERS – Application by Labour Inspector pursuant to s140(6) of Employment Relations Act 2000 – seeks fine for failure to comply with orders from Employment Relations Authority – failure to remediate breaches of minimum standards of employment pursuant to issued Improvement Notice – no objection to the Notice – by evidence and documents produced Court satisfied that defendant failed to pay penalty and filing fees order by the Authority – factors to be taken into account when determining sanctions discussed – disregard and obstructive behaviour shown by defendant – high level of culpability – need to denounce behaviour – need for deterrence – Held, defendant fined $15,000 – defendant to make contribution to costs of Ministry of Justice as well as costs of the plaintiff.

[2016] NZEmpC 28 Bidvest New Zealand Ltd v First Union Inc - (Chief Judge Colgan, 23 March 2016) COSTS – substantive matter discontinued – costs of $6697 plus disbursements awarded to plaintiff.

[2016] NZEmpC 26 Ale v Kids At Home Limited (Costs Judgment of Judge Christina Inglis, 22 March 2016) COSTS – cl 19 of sch 3 of the Employment Relations Act 2000 – reg 68(1) of the Employment Court Regulations 2000 – discretion to award costs is broad, to be exercised judicially and in accordance with principle – costs follow the event – starting point of 66 per cent of actual and reasonable costs incurred – factors to justify an increase or decrease assessed – Held, defendant to pay plaintiff contribution to costs of $2,100, as well as $300 contribution to costs in seeking costs and $322.84 disbursements.

[2016] NZEmpC 27 Henderson v Nelson Marlborough DHB - (Interlocutory Judgment of B A  Judge Corkill, 22 March 2016) COSTS APPLICATIONS – SERVICE OF STATEMENT OF CLAIM – two separate proceedings – email accepted as method of service of statement of claim in relation to one challenge but not the other – whether each challenge constituted separate proceedings – reg 28 of the Employment Court Regulations 2000 – on plain ordinary meaning of notice given by defendant the advice for method of service was limited to only one proceeding –  plaintiff should have adopted an alternative means of service when indicated at outset – Held, no costs awarded.

[2016] NZEmpC 22 Keerithi Merennage v Ritchies Transport Holdings Limited - (Judgment of Judge Christina  Inglis, 17 March 2016) COSTS – cl 19 sch 3 Employment Relations Act 2000 – reg 68(1) Employment Court Regulations 2000 – discretion to award costs is to be exercised judicially and in accordance with principle – costs follow event - usual starting point of 66 per cent of actual and reasonable costs incurred – factors justifying increase or decrease from starting point considered – discussion regarding whether GST is to be awarded – Held, plaintiff to pay defendant $33,000 contribution to costs, together with disbursements.

[2016] NZEmpC 20 Roy v Board of Trustees of Tamaki College (Judgment of Chief Judge G L Colgan, 14 March 2016) UNJUSTIFIED CONSTRUCTIVE DISMISSAL CLAIM - witness credibility – whether employer’s actions were justifiable – good faith obligations in employment – whether settlement barred plaintiff pursuing grievance - s 238 of the Employment Relations Act 2000 – observations on human rights in employment, religion in state schools and employer’s lawful directions – parties settled plaintiff’s claims to relief upon resignation - plaintiff’s claim is barred from consideration – if not barred from consideration plaintiff was not dismissed constructively and unjustifiably – plaintiff’s contributory conduct would have significantly reduced remedies – reinstatement impractical – Held, claim unsuccessful – defendant entitled to costs.

Leave to appeal in CA427/2015 and CA578/2015 is declined. Costs are ordered, 9 March 2016.

[2016] NZEmpC 16 Best Health Products Ltd v Nee - (Judgment of Judge B A Corkill, 26 February 2016) CHALLENGE TO COSTS DETERMINATION – APPLICATION FOR COSTS – Court has wide discretionary power to make awards – basic tenets of awarding costs discussed – issue as to how costs assessed when both parties have measure of success – amount awarded was within range of outcomes open to Authority – Applicant did not discharge onus to persuade Court that Authority determination was wrong –whether costs to be awarded for unsuccessful application for leave – sixty-six per cent of costs actually and reasonably incurred was upheld – Calderbank sum exceeded amount awarded so not relevant - held, challenge dismissed – respondent entitled to costs of $1,800, costs for leave application of $2270 and for costs with regard to her submission in sum of $500.

[2016] NZEmpC 17 NZ Meat Workers & Related Trades Union Inc v AFFCO (NZ) Ltd - (Interlocutory Judgment of Chief Judge G L Colgan, 26 February 2016) DIRECTIONS FOR FUTURE TRIAL OF TWO CAUSES OF ACTION – encouraged private mediation – timetable for parties to file documents with Court discussed – logical order of hearing the different proceedings discussed – telephone directions conference set – two sitting weeks set aside - costs reserved.

Application for leave to appeal dismissed, order as to costs, 22 February 2016. Civil practice and procedure, leave to appeal. Whether Employment Court’s approach to assessing whether a purported variation to an employment contract was a sham gives rise to a question of general or public importance.Held, test for a sham transaction is settled, unassailable factual findings of Employment Court necessitate finding the contractual variation was a sham. Other proposed grounds of appeal deriving from Employment Court’s conclusion the variation was a sham are not of general or public importance.