Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

[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] NZ EmpC 29 Kilpatrick v Air NZ Ltd - (Costs Judgment of Judge M E Perkins, 23 March 2016) COSTS – plaintiff’s financial position considered – some actions of plaintiff led to unnecessary increased costs for defendant – uplift of $7,00 – total costs awarded $80,000 – costs in Authority added

Negligence / car collision / Applicant and Respondent had a side-on collision as Respondent changed lanes to the left, then came back to the right, colliding with Applicant’s vehicle / Held: Respondent fully moved into left lane as damage to Applicant’s car extends the entire left side which is not possible to occur if both vehicles are partially occupying same lane / Respondent liable in negligence for damage to Applicant’s car as did not ensure it was safe to change lanes back to the right / Applicant did not contribute to the impact / claim allowed, Respondent ordered to pay Applicant $4,606.35 for repair and rental car costs

[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.

Decision Date: 17 March 2016. Charges laid under s 91 of the Real Estate Agents Act 2008

[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.

Negligence / car collision / Land Transport (Road User) Rule 2004, r 7.2 / Applicant’s insurance company claimed against Respondent for repairs / HELD: Respondent created hazard and caused the collision by opening car door / therefore, Tribunal found Respondent was negligent having breached duty of care owed to Applicant / repair costs quoted and actual repairs undertaken consistent with damage / claim allowed, Respondent ordered to pay insurance company $1,708.72

Decision date: 24 February 2016. Human Rights Act 1993.

[2016] NZEmpC 13 Adams t/a Untouchable Hair & Skin v Brown - (Costs Judgment of Judge Corkill, 19 February 2016).  COSTS - parties each successful to extent in substantive determination - costs generally follow event – general starting point is two-thirds of actual and reasonable costs incurred – defendant only successful in part - decrease in two thirds starting point – consideration of what are fair and reasonable costs incurred – Calderbank offers were not at level to affect assessment of costs – 5 per cent reduction for misleading statement -  Held, $36, 385.66 payable to defendant.