Judgments of note 2011

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


Grant v Vice-Chancellor of University of Otago [2011] NZEmpC 172 [PDF, 118 KB]
Parties agreed to Authority issuing recommendation under s 173A. Recommendation would become determination if parties did not object after 10 days. Plaintiff's counsel sought extension of time and defendant and Authority agreed. Plaintiff was not personally consulted. Defendant objected to the recommendation which was favourable to the plaintiff. Plaintiff argued that objection was too late as variation of deadline was not valid. Authority concluded variation valid. Court held it was not barred by ss 179 or 188 from deciding merits as issue was not procedural but substantive question concerning whether Authority had power to extend time. Effects of s 173A discussed. No requirement that variation be consented to personally. Variation, agreed by the parties, accepted by the Authority, and recorded properly can be made at any time up until the expiry of the period set by the Member for objection. No requirement that Authority had to redo the statutory affirmation procedure if the date variation was to be valid. Authority had implicit power under text of s 173A to extend date and power under s 221. Challenge dismissed.

Angus & McKean v Ports of Auckland Ltd [ 2011] NZEmpC 160 [PDF, 154 KB]
[Full Court, 2 December 2011]- Full Court judgment providing guidance on the interpretation and application of ss 103A and 125 of the Employment Relations Act 2000, as amended with effect from 1 April 2011. Change from "would" to "could" in s 103A held to be neither ineffectual nor insignificant. Court held that the legislation contemplates that there may be more than one fair and reasonable response that might justifiably be applied by a fair and reasonable employer in all the circumstances. Amended s 103A confirms the need for an objective approach and the requirement for procedural fairness, while expressing that minor error will not result in a dismissal being unjustified. Remedy of reinstatement under amended s 125 has no more or less prominence than the other statutory remedies for unjustified disadvantage or unjustified dismissal. In addition, the Court or Authority must be satisfied that reinstatement is both practicable in any particular case and that it is reasonable to make such an order. This means that if reinstatement is opposed by the employer, in addition to a need for that employer to substantiate its opposition by evidence, the employee will also need to provide the Court with evidence to support his or her claim.

Blackmore v Honick Properties Ltd. [2011] NZEmpC 152 [PDF, 178 KB]
[Chief Judge Colgan, 24 November 2011] - Removal from Authority on preliminary issue relating to trial period provision under s 67A. Court held plaintiff entitled to challenge the justification for his dismissal despite trial period provision in his employment agreement. Court concluded that the plaintiff was an existing employee of the defendant when he executed the individual employment agreement and thus was not an employee under the definition in s 67A(3) to whom a s 67A(1) trial provision in an employment agreement could apply. Alternatively, the Court found that the employment agreement, and particularly the trial period provision, was unfairly bargained for by the defendant under s 63A(2) as the plaintiff had no opportunity to consider, take advice on or negotiate the draft agreement, meaning the trial period clause is liable to be deleted with retrospective effect.

Walker v Procure Health Ltd [2011]NZEmpC 95 [PDF, 113 KB] 
[Judge Ford, 1 August 2011] - Interlocutory judgment dealing with two matters. Counsel for defendant not disqualified from acting at hearing. Rules of Conduct and Client Care for lawyers in context of counsel acting at early stage of employment dispute and independence of counsel considered. General guidance to counsel, particularly with respect to Supreme Court decision in Vector Gas Ltd v Bay of Plenty Energy Ltd [2010] NZSC 5, offered. In relation to second issue, plaintiff free to call witness with consent of defendant

NZ Professional Firefighters Union v NZ Fire Service Commission [2011] NZEmpC 80 [PDF, 96 KB] 
[Chief Judge Colgan, 8 July 2011]-Proceedings removed from the Authority. Successful application for compliance order to enforce bargaining agreement preventing the giving of notice of strike action before mediation had taken place.
Footnote 2 – Application for leave to appeal granted by Court of Appeal
Footnote 3 - Appeal allowed by Court of Appeal

Hally Labels Ltd v Powell [2011] NZEmpC 63 [PDF, 232 KB] 
[Judge Travis, 16 June 2011]- Reasons for Court's decision in [2010] NZEmpC 60, which declared the defendant's purported cancellation to be invalid and of no effect and which issued a permanent injunction for a 12 month restraint of trade

Matsuoka v LSG Sky Chefs NZ Ltd & SFWU [2011] NZEmpC 44 [PDF, 245 KB] 
[Judge Travis, 18 May 2011] -Proceedings removed. Plaintiff entitled to transfer his employment, pursuant to Part 6A of the Employment Relations Act 2000, as a full time employee

Vice Chancellor of Massey University v Wrigley and Kelly[2010] NZEmpC 37 [PDF, 231 KB] 
[Full Court judgment 18 April 2011] "Scope and application of ss 4(1A), 4(1B), 4(1C) of the ERA. In particular the relationship between s 4(1A)(c) and privacy rights including those under the Privacy Act 1993. Defendants were made redundant by employer after restructuring. Decision examines required disclosure of documents and information to existing employees who were candidates for continued employment after restructuring. Was information relevant and confidential and was privacy interest good reason for employer not to disclose.

Zhou v CE of DOL [2011] NZEmpC 36 [PDF, 232 KB] 
[Chief Judge Colgan 15 April 2011] - Successful application by plaintiff for further particulars of defence; plaintiff's application for appointment of special advocate adjourned sine die; order that defendant file further and better affidavit setting out grounds for objection to producing specified documents on ground that to do so will be injurious to the public interest.

Tertiary Education Union v Western Institute of Technology [2011] NZEmpC 33 [PDF, 116 KB] 
[Full Court Judgment 14 April 2011].This judgment interprets and applies for the first time in this Court the law relating to collective bargaining where affected employees do not wish to bargain for a single collective agreement with a group of employers.
Footnote 2 – Application for leave to appeal granted by Court of Appeal
Footnote 4 - Appeal dismissed by Court of Appeal

C v Air Nelson [2011] NZEmpC 27 [PDF, 229 KB] 
[Judge Perkins 29 March 2011] -Successful challenge. Plaintiff held to have been unjustifiably dismissed. Reinstatement ordered in addition to other remedies. Permanent prohibition of name ordered

Northland DHB v NZ RDA [2011] NZEmpC 3 [PDF, 188 KB]
[Chief Judge Colgan 1 February 2011] - Reasons for oral judgment addressing a question of law concerning how a union may sign a notice initiating bargaining under s 42 of the Employment Relations Act 2000."

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