Judgments of note 2013

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


[2013] NZEmpC 165 Matsuoka v LSG Sky Chefs New Zealand Ltd [PDF, 185 KB]
[Interlocutory Judgment of Judge M E Perkins, 4 September 2013] Unsuccessful objection to disclosure by plaintiff and defendant. Civil penalty privilege in reg 39(2) of the Employment Court Regulations 2000 cannot read down statutory provisions of the Act.  Where penalty is sought, regs 40 to 52 do not apply but Court preserves disclosure pursuant to ss 189 and 221(d) to order disclosure where in the overall interests of justice.  Plaintiff cannot rely upon privilege as he is not subject to penalty, and defendant cannot rely on privilege as no basis for its application has been put forward.  Disclosure of documents sought is ordered.  Costs reserved.  

[2013] NZEmpC 157 Service and Food Workers Union Nga Ringa Tota Inc v Terranova Homes and Care Ltd [PDF, 343 KB]
[Judgment of the Full Court, 22 August 2013] Preliminary judgment in favour of the plaintiffs. Section 3(1) (b) of the Equal Pay Act 1972 is to be interpreted broadly, and is capable of including an assessment of the rate which would be paid to male employees “with the same, or substantially similar, skills, responsibility, and service performing the work under the same, or substantially similar, conditions and with the same, or substantially similar, degrees of effort” both inside and outside the workplace and sector concerned.

[2013] NZEmpC 152 The Salad Bowl Ltd v Howe-Thornley [PDF, 243 KB]
[Judgment of Chief Judge Colgan, 16 August 2013] Unsuccessful challenge to Authority determination. “Work trial” conducted by plaintiff amounted to an unlawful fixed-term agreement under s 66 of the Act. The defendant was therefore an employee of indefinite duration and was, accordingly, unjustifiably dismissed by the plaintiff. Costs reserved.

[2013] NZEmpC 106 Pacific Flight Catering Ltd v Service and Food Workers Union Nga Ringa Tota Inc [PDF, 160 KB]
[Judge M E Perkins, 7 June 2013] Unsuccessful challenge. The Court held that the penalties imposed by the Authority were reasonable. The Court reconfirmed that the plaintiffs are jointly and severally ordered to pay a penalty of $5,000 for breach of s 130(2) of the Act, totalling $20,000. In each case $2,500 is ordered to be paid directly to the second to fifth defendants respectively. The balance is to be paid to the Crown which will receive $10,000 in total. The Authority's cost determination of $4,500 together with fees of $71.56 and expenses of $82.60 is also confirmed. Court costs reserved.

[2013] NZEmpC 97 Transpacific Industries v Harris and Green [PDF, 238 KB] 
[Full Court Judgment, 31 May 2013] Preliminary judgment considering the enforceability of a restraint of trade covenant. The Court exercised its discretion under s 8 of the Illegal Contracts Act 1970 not to modify the clause and held that the clause as it stands is unenforceable. Costs reserved.

[2013] NZEmpC 81 Brake v Grace Team Accounting Ltd [PDF, 191 KB]
[Judgment Judge B S Travis, 13 May 2013] - Successful challenge to Authority determination. Court held that the defendant failed to discharge the burden of showing that the plaintiff's dismissal for redundancy was justified. The Court also concluded that the estoppel claim which it found made out, supports the conclusion that the dismissal was unjustified. Plaintiff awarded $65,000 for lost remuneration and $20,000 compensation. Costs reserved.

[2013] NZEmpC 39 Rittson-Thomas t/a Totara Hills Farm v Davidson [PDF, 150 KB]
[Chief Judge Colgan, 20 March 2013] Unsuccessful challenge to Authority determination. It will be insufficient, for the purposes of s 103A of the Act, for an employer to claim that a redundancy was a genuine business decision, without the Court first inquiring into whether the decision, and how it was reached, were what a fair and reasonable employer would/could have done in all the relevant circumstances. Although not driven by ulterior motives, the defendant’s redundancy was unjustified, as the plaintiff failed to act as a fair and reasonable employer would have in all the circumstances.

[2013] NZEmpC 35 Tan v LSG Sky Chefs NZ Ltd [PDF, 204 KB]
[Judge Travis, 4 March 2013] - Removal from the Authority. Case concerned whether the plaintiff was entitled to transfer his employment to the defendant pursuant to subpart 1 of Part 6A and secondly the determination of the terms and conditions of the plaintiff's employment if he was so entitled. The Court held that it was clear that Part 6A was intended to provide protection for limited categories of employees providing a particular type of service, but was not persuaded that the plaintiff fell within that category. The Court thus held that the plaintiff was not an employee who was entitled to elect to transfer. Costs reserved.

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