Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

[2015] NZEmpC 179 Harris v TSNZ Pulp and Paper Maintenance costs (Costs Judgment of Chief Judge G L Colgan, 9 October 2015)  INDEMNITY COSTS SOUGHT – not a test case – no exceptional circumstances to warrant indemnity costs – reasonable costs and disbursements identified and allowed – no mediation costs – surprising that union is charging member full costs of attendance

[2015] NZEmpC 199 Ganley v PB Sea-Tow (NZ) Ltd (Judgment of Judge Christina Inglis, 13 November 2015) REDUNDANCY QUANTIFICATION – COTRACTUAL INTERPRETATION – employee worked on different projects at different rates – which rate applied for purpose of calculating redundancy – personal grievance  and breach of contract claims not made out.

[2015] NZEmpC 200 South Pacific Meats Ltd v NZ Meat Workers & Related Trades Union Inc (Judgment of Chief Judge Colgan, 13 November 2015) . CHALLENGE TO PRELIMINARY JURISDICTIONAL DETERMINATION – whether Authority was right to dismiss claim on basis of lacking jurisdiction to consider it – it is competent for Authority to make a compliance order for the future based on past breaches but in respect of which the Authority does not impose any other sanction – Authority was wrong to determine it lacked jurisdiction to determine whether frequency of union visits was a breach of law - Held, Authority’s decision set aside , no award of costs.

[2015] NZEmpC 196 Fox v Hereworth School Trust Board interlocutory (Judgment of Chief Judge G L Colgan, 9 November 2015)  APPLICATION TO INTRODUCE FURTHER EVIDENCE – refused – will not affect outcome of case.

[2015] NZEmpC 194 Tuala v Linfox Logistics (N.Z.) Ltd (Interlocutory Judgment of Judge A D Ford, 4 November 2015) ORDER STAYING EXECUTION OF COSTS AWARD – SECURITY FOR COSTS- s180 of Employment Relations Act 2000 applied – r 64 of Employment Court Regulations – High Court Rules applied – Legal Services Act 2011 discussed – financial status of plaintiff discussed - plaintiff had genuine claim – if security for costs ordered the plaintiff’s case will go no further – order having that effect should only be made where claim has little chance of success - Held, application for stay of costs determination granted – application for security for costs order dismissed.

[2015] NZEmpC 190 Brown v Adams t/a Untouchable Hair & Skin - (Judgment of B A Corkill) REHEARING APPLICATION – whether a rehearing application should be granted – cl 5 sch 3 of Employment Relations Act 2000 applied – whether there was a risk that miscarriage of justice had occurred - whether there had been reasonable opportunity to present supplementary evidence – that evidence would not have influenced the result – Held, application for rehearing dismissed, costs reserved.

[2015] NZEmpC 189 Kirby v The NZ China Friendship Society - (Judgment of Judge Corkill, 22 October 2015). DE NOVO CHALLENGE - Whether employee or unpaid volunteer – s 6 Employment Relations Act 2000 ‘meaning of employee’ considered – whether there was expectation for reward for work rendered – whether there was any reward for work rendered – reliability of evidence discussed – no reasonable basis for an expectation of reward for work undertaken as volunteer – wages were not paid only provision for travel and associated expenses - Held – challenge dismissed

[2015] NZEmpC 186 The Commissioner of Salford School v Campbell (Judgment of Judge Corkill, 20 October 2015)  ISSUES AS TO COSTS – whether defendant should have costs award against her in respect of her unsuccessful application for an interim reinstatement order – Calderbank offer considered – costs should follow the event – daily tariff for 5.5 days Authority hearing with no increase or decrease of costs justified - contribution of 66 per cent of actual costs incurred in Court was reasonable - Held, plaintiff to pay defendant a contribution towards both costs in Authority and in the Court.

[2015] NZEmpC 184 G L Freeman Holdings Ltd v Livingston (Costs Judgment of Judge Couch, 19 October 2015) COSTS – plaintiff wholly unsuccessful in its challenge – entitled to reasonable contribution to costs – Held, plaintiff to pay $3,700 in costs.

[2015] NZEmpC 181 Allied Investments Ltd v Guise - (Judgment of Judge Ford, 16 October 2015)  DE NOVO CHALLENGE - UNJUSTIFIED CONSTRUCIVE DISMISSAL - Tripartite employment arrangement – constructive dismissal principles identified – whether there was constructive dismissal – whether risk of resignation was reasonably foreseeable – whether dismissal was justified – s103A of Employment Relations Act applied - employer breached duties owed towards employee - dismissal was caused by breach of duty by employer – employer must have foreseen that as a result of its breach of duty it was inevitable that employee would resign – Held, claim upheld - award for loss of wages, compensation for hurt and humiliation – 20 per cent reduction for contributory conduct

[2015] NZEmpC 180 Keepa v Go Bus Transport Ltd (Judgment of Judge M E Perkins, 12 October 2015)  CLAIM FOR UNJUSTIFIED DISMISSAL – plaintiff subject of several customer complaints – performance discussion and disciplinary meetings held - nemo judex in sua causa not appropriate– employer carrying out disciplinary function not acting judicially - accord and satisfaction considered – plaintiff resigned – no dismissal or constructive dismissal – challenge dismissed.

[2015] NZEmpC 178 Twentyman v The Warehouse Ltd (Interlocutory Judgment of Chief Judge G L Colgan, 8 October 2015) SECURITY FOR COSTS – ORDER FOR STAY – plaintiff unsuccessful at Authority and ordered to pay costs plus penalty of $1500 – security for costs would deny challenge from proceeding – statutory right to proceed – execution of Authority orders stayed on condition that security for past costs excluding penalty be paid into the court

[2015] NZEmpC 177 Southall v Tuau - (Judgment of Judge B A Corkill, 6 October 2015) CHALLENGE TO COSTS DETERMINATION – Wide discretionary power of Court to award costs – to be exercised according to principle – principles applying to Authority awards of costs considered – it was not unreasonable for the two Calderbank offers to be declined in their particular contexts – both Calderbank offers not relevant to consideration of costs – suitable for costs to follow event – normal daily tariff applies – some discontinuance for one aspect of claim - Held, challenge dismissed