Judgments of note 2019

From time to time the Court decides cases that have general importance for practitioners of employment law as well as for the particular parties. These will include some judgments of the full Court and others examining and applying new law.

2019

Decisions of Note:

[2019] NZEmpC 91 Johnstone v Kinetic Employment Ltd [PDF, 253 KB] (Judgment of Judge J C Holden, 2 August 2019) AUTHORITY POWERS – summons to produce computer - forensic examination not a search order – matter of procedure – s 179(5) precludes challenge.(external link)

[2019] NZEmpC 87 Tourism Holdings Limited v A Labour Inspector of the Ministry of Business, Innovation and Employment [PDF, 393 KB] (Judgment of Judge K G Smith, 26 July 2019) DECLARATION - Holidays Act 2003 – Meaning of “regular” – s 8(2) Holidays Act 2003 – No requirement to include in the calculation of ordinary weekly pay commission payments received during the four-week period preceding annual holiday.

[2019] NZEmpC 83 Pitman v Advanced Personnel Services Ltd [PDF, 374 KB] (Judgment of Judge K G Smith, 15 July 2019) NON-DE NOVO CHALLENGES – RESTRAINT OF TRADE – DAMAGES – INDEMNITY CLAUSE – COSTS – s 238 Employment Relations Act 2000.

[2019] NZEmpC 66 Morgan v Tranzit Coachlines Wairarapa Ltd [PDF, 261 KB] (Judgment of Chief Judge C Inglis, 28 May 2019) FIXED-TERM EMPLOYMENT AGREEMENT – VALIDITY – whether relying on uncertain funding streams is genuine reason – whether funding concerns are reasonable – whether alternatives to fixed-term agreement available.

[2019] NZEmpC 59 Kazemi v Rightway Ltd [PDF, 445 KB] (Judgment of Judge J C Holden, 15 May 2019) EMPLOYMENT PREMIUM – employee needed to pay $125,000 as buy-in fee to partnership scheme – test for whether a premium applied – whether benefit gained aside from employment – misrepresentation – breach of contract – whether contract is illegal – penalty imposed – costs.

[2019] NZEmpC 49 Mathews v Bay of Plenty District Health Board [PDF, 449 KB] (Judgment of the Full Court, 2 May 2019) CONTRACTUAL INTERPRETATION – RETIREMENT GRATUITY – whether employee entitled to retirement gratuity – whether the retirement gratuity is discretionary – whether employee actually retired.

[2019] NZEmpC 47 Postal Workers Union of Aotearoa Inc v New Zealand Post Ltd [PDF, 349 KB] (Judgment of the Full Court, 2 May 2019) AVAILABILITY PROVISION – whether s 67D intended to only apply to zero-hour contracts – whether compulsory overtime provisions amount to availability provision – whether employees on a salary that includes reasonable compensation for availability.

[2019] NZEmpC 45 Chambers v Pelabon [PDF, 347 KB] (Judgment of Judge B A Corkill, 18 April 2019) COMPLIANCE ORDER – whether compliance should be ordered against holding company and director – good faith issue during Authority investigation – challenge limited to certain issues – whether Lawrence Publishing Co of New Zealand Ltd is applicable under Employment Relations Act 2000 – compliance can be ordered not only against employer – compliance ordered against holding company and director.

[2019] NZEmpC 37 Derbie v Tranzurban Hutt Valley Ltd [PDF, 674 KB] (Judgment of Judge B A Corkill, 3 April 2019) ENTITLEMENT TO REST BREAKS – Land Transport Rules on rest breaks considered – whether LTA rules prevail over ERA rest break provisions – regimes should apply side-by-side – whether operational issues eliminate most breaks – whether appropriate access to toilets – rest breaks are compliant with ERA.

[2019] NZEmpC 20 Jacks Hardware and Timber Ltd v First Union Inc [PDF, 537 KB] (Judgment of Judge K G Smith, 28 February 2019) FACILITATION – BREACH OF GOOD FAITH - FIXING – whether Authority correct to order fixing of terms of collective agreement -  consideration of grounds in s 50J – breach must be “sufficiently serious” and sustained to undermine bargaining – offer of further mediation not reasonable – fixing only effective remedy – challenge dismissed.

[2019] NZEmpC 16 Moody v Chamberlain [PDF, 256 KB] (Interlocutory Judgment of Chief Judge Christina Inglis, 15 February 2019) APPLICATION FOR APPOINTMENT OF LITIGATION GUARDIAN – requirements of High Court Rules – affidavit evidence needed for one respondent – whether hybrid model appropriate – litigation guardian appointed under HCR 4.29, 4.38.

[2019] NZEmpC 12 A Labour Inspector v Daleson Investment Ltd [PDF, 376 KB] (Judgment of Chief Judge Christina Inglis, 11 February 2019) QUANTUM OF PENALTY – S 174E    - whether Authority erred in setting penalty – whether reasons given by Authority were adequate to meet s 174E  - examination of steps in assessing penalty - brevity of determination and rationale not adequate – penalty uplifted to $40,000

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