Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

Contract / Respondent provided software services to Applicant / Agreement stated Respondent’s charges subject to change on 7-days’ notice / Respondent increased charges in August but did not notify Applicant until September / Respondent informed Applicant of increase by email, apologised for not notifying in advance / Applicant claimed email was apology only and did not constitute notice as given retrospectively / Applicant charged higher price for five months before cancelling agreement / Applicant claimed $600 refund / Held: email constituted notice of increase / Increase could not apply to charges before notice given / Respondent agreed to refund first month of increased charges / Applicant not entitled to refund for charges after notice period / Claim dismissed.

Aviation law / Civil Aviation Act 1990 / Contract law / Contract and Commercial Law Act 2017 / Applicants booked to fly internationally with the Respondent / Flight was diverted as severe weather was predicted / Applicants claims various costs including cost of transportation, electronic visa, food, hotel stay, and insurance / Held: Respondent not responsible for costs in these circumstances, as the risk of severe weather disruptions is on the customer / However, Respondents were willing to make some good-will payments to the Applicants / Respondent to pay Applicant $1,822.67 in damages.

Contract / Consumer Guarantees Act 1993 / Applicant purchased car stereo online for $10.00 / Respondent was stereo importer / After installation stereo found to be faulty / Applicant claimed $375.00 from Respondent / Respondent claimed stereo was type that was only sold to traders / Stereo was third hand when Applicant brought it / Respondent claimed impossible to tell what may have happened to stereo over various installation and removal processes / Held: stereo's low price and being only three months old suggested there could be a fault / Unclear if stereo was defective or had been mishandled / Applicant unable to prove that Respondent was liable / Claim dismissed.

Contract / Applicant engaged Respondent to supply and install new kitchen and laundry / Applicants discovered space for appliances was smaller than measurements on plan / Applicant and Respondent discussed refund but could not agree on appropriate amount / Applicant claimed compensation / Held: 10% of contract price appropriate for damages / Respondent ordered to pay Applicant $1700 / Claim allowed in part.

Contract / Applicant contracted Respondent for house removal / Respondent not able to complete move / Applicants had to accept quote from another company at additional cost / Applicants claimed $8,360 for additional costs / Held: contract not concluded until full document was signed / Non-payment of deposit and late return of contract left deal at election of Respondent / Unable to find breach by Respondent that justifies award of sum claimed / Claim dismissed.

Penalty / misconduct for sexual harassment against four younger employees / HELD / conduct not isolated or out of character / three incidents over two to three years, pattern of conduct / serious misconduct but not at most serious level / mitigating factors / clean record / support letters / contribution to profession / steps taken to modify behaviour given less weight due to lack of insight from practitioner’s evidence / aggravating factors / practitioner trivialised conduct / continuing conduct after warnings / harm to complainants / not disclosing suspension by his firm at penalty hearing / conduct less serious than Gardner-Hopkins / starting point is higher end of suspension / costs reduced as practitioner accepted responsibility / Tribunal ordered censure, 18 months’ suspension and compensation ($10,000) to one complainant for emotional harm / practitioner to pay 80 per cent of Standards Committee’s costs ($38,643.61), not all charges having been proved and full Tribunal’s costs

Liability and penalty / misconduct / two licensees charged under s73b and s73c / first licensee marketed property for sale without agency agreement, failed to ensure conjunctional sale agreement was in place, failed to explain he was assisting second licensee, deprived agency of commission, performed real estate work without supervision, misled agency about commission / second licensee worked with first licensee without agreement between agencies / deprived agency of commission / Real Estate Agents Act 2008, s3, s73b, s73c, s93, s110, s110A / Professional Rules 2012, r5.1, r5.2, r6.2, r6.3, r6.4, r9.6 / HELD / both licensees plead guilty / reckless conduct but not dishonest / apologised and expressed remorse / first licensee continually failed to meet professional obligations / donated part of commission to charity / censured / $6,500 fine / second licensee intentionally paid full commission to first licensee / censured / $3,000 fine / 50 per cent costs ($1,552.50), split evenly

[2023] NZEmpC 65 Alkazaz v Cognizant New Zealand Ltd (Costs Judgment of Chief Judge Christina Inglis, 27 April 2023) COSTS – GUIDELINE SCALE – privileged communication cannot be considered – costs awarded.

[2023] NZEmpC 61 FGH v RST (Judgment of Judge B A Corkill, 20 April 2023) APPLICATION FOR STAY OF COSTS ISSUES – application made for leave to appeal – costs stayed until Court of Appeal leave application decision is issued.

Contract / Consumer Guarantees Act 1993 / Respondent engaged to manage Applicant's rental while she worked overseas / Applicant noticed items missing or damaged on return / Applicant claimed $2,550 for compensation / Respondent claimed $629.36 for travel and time / Held: Respondent did not provide service with reasonable care and skill / Applicant entitled to $853.20 in compensation considering items were not new / Applicant ordered to pay Respondent for travel fees and time, $475.59 / Claim granted in part.

Contract / Contract and Commercial Law Act 2017 / Applicant purchased ute from Respondent / Applicant later informed vehicle required repairs due to extensive corrosion / Applicant claimed $20,000 / Held: Respondent misrepresented condition of ute / Misrepresentation induced Applicant to purchase vehicle / Applicant entitled to estimated repair costs / Respondent ordered to pay Applicant $14,472.75 / Claim allowed.

Contract / Misrepresentation / Contract and Commercial Law Act 2017 / Applicant purchased a unit in Respondent’s village after watching a video where village was presented as a secure gated community / Applicant claimed village was not a secure gated community / Applicant claimed $30,000.00 for burglar alarm remotes, security cameras, and 20 years of internet connection and phone costs / Held: Applicant was induced to enter contract based on representation that village was secure gate community / Evidence indicated village was not secure gated community / Applicant entitled to $849.00 for security cameras, purchased to rectify misrepresentation / Applicant not entitled to $900.00 for burglar alarm remotes / Applicant not entitled to claim for 20 years of fibre and phone plans and replacement phones, amounting to $28,251.00 / Respondent ordered to pay $849.00 / Claim allowed in part.

Contract / Applicant became member on Respondent's platform by providing incorrect date of birth / Respondent suspended Applicant's account / Applicant claimed for reimbursement of success fees paid while minor / Held: Respondent entitled to be paid for service Applicant used / Respondent entitled to keep success fees paid by a minor / Claim dismissed.