Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

Decision Date: 23 September 2016. Penalty Decision. Real Estate Agents Act 2008

[2016] NZEmpC 121 Tait v Robin t/a Silver Birch Holiday Park & Motel (Judgment of Judge M E Perkins, 21 September 2016) REMEDIES – MITIGATION OF LOSS – plaintiff took appropriate steps to mitigate loss – contributory conduct not found – $6,999.92 ordered against defendant – plaintiff entitled to costs.

Decision on Liability (Incompetence Charges) (15 September 2016)

Contract / Civil Aviation Act 1990, s.91Z / Applicants booked return flights with Second Respondent and second flight was cancelled / Applicants booked a replacement flight with different airline / Second Respondent refunded fare of $343 / Applicants seek compensation of $1,999.99 for undue stress and extra costs incurred due to the cancellation and necessity to book another flight at a later date / Held: a carrier is liable for damages caused by delay unless delay made necessary by force majeure (unforeseeable circumstances) / mechanical breakdown is a foreseeable event / carrier not liable if they take all necessary steps to avoid damage or it is not possible to take those steps / Respondent delayed decision to cancel flight to a point where passengers would struggled to get alternative flights or accommodation / Respondent only operated one aeroplane and had no replacement / Respondent bears this as a business risk / Terms and Conditions purporting to limit Respondent’s liability ha…

07.09.16 | Judge Coxhead | Te Ture Whenua Māori Act 1993, section 79 | Costs

06.09.16 | Judge Ambler | Te Ture Whenua Māori Act 1993, section 328 | Costs

[2016] NZEmpC 112 Radius Residential Care Limited v The New Zealand Nurses Organisation Inc (Judgment of Chief Judge G L Colgan, 31 August 2016) STRIKE – AUTHORISED UNION MEETING – COLLECTIVE BARGAINING – employee actions not a union meeting – strikes found unlawful – standard of proof higher than balance of probabilities for statutory penalties – first and second defendants liable as parties to unlawful strike action – damages awarded – insufficient evidence for liability to penalties – breach of good faith obligations insufficient for penalties purposes – costs reserved.

Tenor of Standards Committee determination subjective, personal and pejorative, inconsistent with terminology of the LCA. Determination reversed. Finding of unsatisfactory conduct not challenged by applicant, and reinstated (for different reasons) on review. Standards Committee ordered lawyer to pay costs of $5,000. Costs not part of penalty, and should reflect costs and expenses of and incidental to inquiry or investigation.LCRO directed Standards Committee to give lawyer the opportunity to make submissions on costs prior to making an order.

Decision date: 24 August 2016. Charges. Substantive and penalty decision.

Hunza Productions Limited v E Lighting Limited [2016] NZEmpC 106 (Consent Judgment of Judge K G Smith) CONSENT – parties agreed to settle consolidated proceeding – penalties set aside – stay of execution discharged and payments reimbursed – no orders for costs.

Decision date: 23 August 2016. Charges and Appeal. Interim Ruling.

Negligence / motor vehicle collision / Applicant was riding motor scooter when a vehicle turned right across her path / Applicant claims losses from damage to scooter that was uneconomic to repair / Respondent denies being the driver of the car and knew nothing about the collision before receiving notice of proceedings / Held: on balance of probabilities, Respondent was the driver of the vehicle / Respondent failed to check that all lanes were clear before turning right / Respondent liable for reasonable losses / claim allowed, Respondent to pay Applicant $3,554 in replacement costs .

[2016] NZEmpC 101 Modern Transport Engineers (2002) Limited v Phillips (Consent Costs Judgment of Judge Christina Inglis, 18 August 2016) CONSENT – COSTS – costs issues resolved by parties – settlement terms confidential.