Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

[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

[2015] NZEmpC 174 McIvor v Saad (Costs Judgment of Chief Judge G L Colgan, 2 October 2015) COSTS –uplift granted because of unreasonable rejection of settlement offers – calculation should be on hours actually worked each week before dismissal –costs of $9,333 – wages of $8,937.50 (before tax).

[2015] NZEmpC 170 Mahamai v Belley (Labour Inspector) - (Judgment of Judge B A Corkill, 30 September 2015) .CHALLENGE TO COMPLIANCE, PENALTY AND COSTS ORDER – proceeding not dismissed on frivolous or vexatious grounds – evidence established plaintiff was employer – Minimum Wages Act 1983 considered – Plaintiff’s personal circumstances considered in light of plaintiff’s ability to pay the outstanding debts owed – whether payments by instalments were appropriate – whether there should be a penalty for non-payment – Held, compliance order issued for payment of unpaid wages, holiday pay and interest – all to be paid within 12 months of judgment date – to be reviewed at telephone conference

[2015] NZEmpC 172 D’Arcy-Smith v Natural Habitats Ltd - (Costs judgment of Judge Christina Inglis, 30 September 2015)  COSTS – hardship should not prejudice successful party – costs reasonable - $19,500 awarded – disbursement claim not properly made out – not awarded.

[2015] NZEmpC 168 Lawson v NZ Transport Agency (Interlocutory Judgment of Judge Christina Inglis, 29 September 2015) APPLICATIONS FOR STAY, SECURITY FOR COSTS – both applications opposed – need to balance needs of parties – no security for costs ordered - stay granted on condition that sum of $17,500 be paid into the Court.

[2015] NZEmpC 166 Able Owl XL Ltd v Gladden (Judgment of Judge M E Perkins, 24 September 2015) REDUNDANCY ENTITLEMENTS – nature of commission arrangements – different understandings between employer and employee – underpaid commission ordered – no compensation because claim relates to period following termination of employment.