Judgments of note 2015
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
 NZEmpC 230 FIRST Union Inc v Jacks Hardware and Timber Ltd [PDF, 365 KB]
(Judgment of Chief Judge Colgan, 17 December 2015). DECLARATION – AN END TO COLLECTIVE BARGAINING? - FACILITATED BARGAINING – declaration regarding employer's assertion that bargaining for collective agreement concluded on specific date without settlement of a collective agreement – application for order directing parties to facilitated bargaining – whether breach of good faith – s 33 Employment Relations Act 2000 – whether genuine reasons based on reasonable grounds – place of remuneration in collective agreements and confidentiality of employment terms – whether bargaining was unduly protracted – whether extensive efforts failed to resolve difficulties and precluded parties from entering into agreement - Held, Bargaining not lawfully ended under former s 33 - Authority to accept application for facilitated bargaining – plaintiff entitled to costs but no time limit imposed on application.
 NZEmpC 225 Lumsden v Skycity Management Ltd [PDF, 206 KB]
(Judgment of Judge Christina Inglis, 16 December 2015). FRIVOLOUS AND VEXATIOUS – REVISITING FULL AND FINAL SETTLEMENT AGREEMENTS - claim of breach of settlement agreement – whether challenge to settlement containing “full and final settlement” clause was frivolous and vexatious – part of a matter cannot be dismissed on such grounds – meaning of ‘frivolous’ considered – not the same as lacking legal merit – must be impossible to take seriously – in some circumstances full and final settlement may be revisited – Authority to proceed with investigation.
 NZEmpC 204 New Zealand Meat Workers & Related Trades Union Inc v AFFCO New Zealand Limited [PDF, 533 KB]
(Judgement of the full Court, 18 November 2015). UNLAWFUL LOCKOUT- GOOD FAITH IN COLLECTIVE BARGAINING - STATUS OF AFFCO SEASONAL MEATWORKERS – whether company could require returning employees to sign individual employment agreements (IEAs) while bargaining for collective agreement was continuing – contractual interpretation approach taken – previous case law reviewed – seasonal meatworkers found to be employees – Company unlawfully insisted on returning workers signing IEAs – bad faith in not involving union and bargaining individually in course of collective bargaining - parties to advise Court within seven days of steps taken towards mediation.
 NZEmpC 200 South Pacific Meats Ltd v New Zealand Meat Workers & Related Trades Union Inc
[PDF, 177 KB](Judgement of Chief Judge Colgan, 13 November 2015). CHALLENGE TO PRELIMINARY JURISDICTIONAL DETERMINATION – whether Authority was right to dismiss claim on basis of lacking jurisdiction to consider it – it is competent for Authority to make a compliance order for the future based on past breaches but in respect of which the Authority does not impose any other sanction – Authority was wrong to determine it lacked jurisdiction to determine whether frequency of union visits was a breach of law - Held, Authority’s decision set aside , no award of costs.
 NZEmpC 198 Ritchies Transport Holdings Limited v Merennage [PDF, 297 KB]
(Judgment of Judge Inglis, 13 November 2015). UNJUSTIFIED DISMISSAL – procedural shortcomings in investigation – suspension without pay for over a year – principles applying to standard of proof in employer investigation of allegations of serious misconduct considered – caution over assessing credibility – defendant awarded $15,000 compensation and lost wages.
 NZEmpC 176 Lean Meats Oamaru Ltd v NZ Meat Workers & Related Trades Union Inc [PDF, 222 KB]
(Judgment of Judge B A Corkill, 6 October 2015). CHALLENGE – alleged non-compliance with statutory provisions for paid rest breaks – alleged non-compliance with Part 6D of the Employment Relations Act – whether parties included compensation for rest breaks in the collective employment agreements - principles as to interpretation of employment agreements applied – Held, Authority determination upheld, challenge dismissed - Union entitled to costs – parties to attempt to resolve quantum issues directly.
 NZEmpC 171 Nisha v LSG Sky Chefs NZ Ltd [PDF, 488 KB]
(Judgment of Judge B A Corkill, 30 September 2015). UNJUSTIFIED DISADVANTAGE – CONSTRUCTIVE DISMISSAL - Employment transferred to rival business under Part 6A of the Employment Relations Act 2000 – issues as to whether promotion and increase in wages prior to transfer was genuine – terminology and purpose of s69I addressed – whether sham principles applied - employees terms deliberately inflated - representations made to subsequent employer were fictitious – employee could not have had legitimate expectation that employer had provided anything other than fictional increases – undue delay on part of employer in resolving uncertainties – stress and depression due to employment - Held, disadvantage grievance upheld – compensation of $1500 for humiliation, loss of dignity and injury to feelings after allowance for contributory behaviour.
 NZEmpC 169 Tertiary Education Union v Vice-Chancellor University of Auckland [PDF, 123 KB]
(Judgment of Judge Christina Inglis, 30 September 2015). INTERPRETATION OF CLAUSE IN COLLECTIVE AGREEMENT – whether words of agreement meant that Vice-Chancellor could not make an amendment to policy without agreement of union – contract interpretation principles summarised – place of extrinsic materials considered – Vice-Chancellor may amend policy without agreement once participatory process is completed.
 NZEmpC 167 Mighty River Power Ltd v Halwala [PDF, 73 KB]
(Consent Judgment of Judge Christina Inglis, 28 September 2015). CHALLENGE TO NON-PUBLICATION ORDER GRANTED AT AUTHORITY – order lifted by consent.
 NZEmpC 147 Rodkiss v Carter Holt Harvey Ltd [PDF, 268 KB]
(Costs Judgment of Judge A D Ford, 27 August 2015). COSTS – Calderbank offer made in the Employment Relations Authority relevant to issue of costs – GST neutral approach in relation to costs applied – consideration as to what qualifies as a recoverable disbursement – consideration as to factors justifying an increase or decrease from starting point of 66 percent contribution towards fair and reasonable costs - Held, percentage of costs and disbursements awarded to applicant.
 NZEmpC 138 New Zealand Meat Workers Union Inc v South Pacific Meats Ltd [PDF, 415 KB]
(Judgment of Judge G L Colgan, 7 August 2015). AUTHORITY’S JURISDICTION –COMMON LAW RIGHT TO PENALTY PRIVILEGE –whether there is a residual common law privilege against self-incrimination in civil penalty proceedings – whether this exists at Authority - comparison of penalty privilege rights at Authority and Employment Court – penalty proceedings not criminal proceedings – reg 39(2) negates right to disclosure – can be determined by Court – - NZBORA s 27,29 considered – Evidence Act ss 60, 63 considered – privilege applies to corporations – two narrow self-incrimination privileges may be asserted at the Authority.
 NZEmpC 122 Campbell v The Commissioner of Salford School [PDF, 631 KB]
(Judgment of Judge Corkill, 27 July 2015). DE NOVO CHALLENGE – Whether suspension was justified – whether dismissal was justified – whether reinstatement suitable - issues raised over period exceeding six years as to conduct of employee – procedural and substantive flaws found - issues as to lack of specificity in various claims against plaintiff and therefore ability of plaintiff to respond to claims – plaintiff not given adequate informed opportunity to be heard – suspension not substantively justified on grounds identified in letter proposing it – appearance of legal bias – investigation instigated by individual who already had own view as to outcome of investigation - investigator carrying out investigation into alleged conduct was not substantially independent as was also legal advisor to defendant – confidential information relied upon in investigation and subsequently plaintiff denied opportunity of considering it – terms of reference in investigation were too broad – earlier recommendations as to the urgent implementation of stringent performance objectives were not heeded – no heed paid to earlier recommendations to delay investigation until time when improvements were being effected– discussion surrounding adherence to the collective agreement – important distinction between performance and conduct issues was not identified and considered - suspension and dismissal was not a conclusion a fair and reasonable employer could have reached in all the circumstances - disadvantage grievances established – compensation for humiliation, loss of dignity and injury to feelings – compensation for lost wages – costs in favour of plaintiff - reinstatement not reasonable or practical given regard to significant history of dysfunctional relationships and the required process for resolution of existing issues if reinstatement were to occur – no practical reason for reinstatement.
 NZEmpC 94 NZ Meat Workers & Related Trades Union Inc v AFFCO New Zealand Limited [PDF, 262 KB]
(Interlocutory Judgment (No 2) of Chief Judge G L Colgan, 17 June 2015). APPLICATION FOR INTERLOCUTORY AND INTERIM INJUNCTION – WHETHER UNLAWFUL LOCKOUT – seasonal workers – injunction sought to prevent company from offering new terms and conditions on individual agreements – whether plaintiffs have arguable case as “prospective employees” – historical overview of relevant case law – consideration of what constitutes lawful lockout – arguable case established – balance of convenience and overall justice favour defendant – injunctions declined – reminder of objectives of the Act.
 NZEmpC 41 Denyer v Peter Reynolds Mechanical Ltd t/a The Italian Job Service Centre [PDF, 185 KB]
(Judgment of Judge Christina Inglis, 31 March 2015). APPLICATION FOR PENALTY – compliance order not complied with – defendant paid outstanding amount prior to hearing – factors to be weighed in determining penalty – quantum of fines surveyed – fine of $5,500 ordered.
 NZEmpC 37 Gapuzan v Pratt Whitney Air NZ [PDF, 157 KB]
(Judgment of Judge B A Corkill, 26 March 2015). COSTS– question of costs awards made against bankrupt after adjudication – costs award upheld as contingent debt subject to final determination of High Court.
 NZEmpC 36 Yan v Commissioner of Inland Revenue [PDF, 280 KB]
(Judgment of Judge Christina Inglis, 24 March 2015). UNJUSTIFIED DISMISSAL– unsuccessful claim for unjustified dismissal –dismissed for performance issues – whether bias present – standards applying to performance management.
 NZEmpC 35 Coy v Commissioner of Police [PDF, 592 KB]
(Judgment of Chief Judge G L Colgan, 24 March 2015). CONSTRUCTIVE DISMISSAL - UNJUSTIFIED DISADVANTAGE – justiciable scope of claims going back in time– law of constructive dismissal – claim for constructive dismissal not unsuccessful– s 122 applied - events over long period amounted to unjustified disadvantage.
 NZEmpC 29 Hall v Dionex Pty Ltd [PDF, 330 KB]
(Judgment of Judge Christina Inglis, 13 March 2015). UNJUSTIFIED DISMISSAL – successful challenge to dismissal – predetermined - authority of decision-maker questioned – counter-factual analysis required for compensation – reduced for contribution – breach of contract claim barred by s 113(1).
 NZEmpC 24 Lowe v Director-General of Health, Ministry of Health & Ors [PDF, 194 KB]
(Judgment of the Full Court, 2 March 2015). DEFINITION OF HOMEWORKER – whether Carer Support workers providing relief care are homeworkers under s 6 - legislative framework considered – comparison with ECA 1991 challenge allowed.
 NZEmpC 23 Nisha v LSG Sky Chefs New Zealand Ltd [PDF, 163 KB]
(Interlocutory Judgment (No 4) of Chief Judge G L Colgan, 25 February 2015). MEANING OF “CLEAR DAYS” – OUT OF TIME APPLICATION – interpretation of “clear days” – challenge to objection out of time – leave to extend time granted.
 NZEmpC 19 Atkinson v Phoenix Commercial Cleaners [PDF, 261 KB]
(Judgment of Chief Judge G L Colgan, 24 February 2015). SECTION 6 – EMPLOYEE OR CONTRACTOR – cleaning company – some outward indicators suggesting contractor - UKSC Autoclenz v Belcher considered – section 6 analysis – real nature of relationship that of employer/employee.
 NZEmpC 17 ALLWAZE Designs Ltd v Cawthorne [PDF, 112 KB]
(Interlocutory Judgment of Judge A D Ford, 18 February, 2015). SECURITY FOR COSTS- IMPECUNIOSITY – principles applicable to security for costs – parlous financial state not automatic defence – security for costs ordered.
 NZEmpC 8 Q v Commissioner of Police [PDF, 110 KB]
(Interlocutory Judgment of Judge B A Corkill, 5 February 2015). IN CAMERA - NON-PUBLICATION ORDERS – Court has inherent jurisdiction to order in camera hearing – exceptional circumstances – principles for non-publication considered- orders granted – access to file limited
 NZEmpC 2 Tomo v Checkmate Precision Cutting Tools Ltd [PDF, 98 KB]
(Costs Judgment of Judge Christina Inglis, 8 January 2015). COSTS – FINANCIAL HARDSHIP – Costs sought by defendant following plaintiff’s discontinuance of proceedings – Plaintiff claims he is unable to satisfy any order for costs on financial hardship – Court’s current approach to financial hardship in costs applications raises a number of issues – Fact that costs award would impose undue hardship should not be decisive of any costs application – Hardship should be weighed with other considerations in exercise of the Court’s discretion – Not in interests of justice to make a reduced order for costs – Aggravating features of plaintiff’s conduct during proceedings weigh against any alleged impecuniosity – Plaintiff to pay defendant $3,000 costs.
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