Judgments of note 2020

[2020] NZEmpC 237 Gate Gourmet NZ Ltd and ors v Sandhu and Ors [PDF, 324 KB] (Judgment of the Full Court, 21 December 2020) MINIMUM WAGE - employer shut down business during lockdown - employer was essential service - whether employees entitled to minimum wage during business closedown when not working - entitlement to minimum wage comes from Minimum Wage Act 1983, s 6, which requires work - s 7(2) does not apply unless work is performed under s 6 - DISSENT - Minimum Wage Act 1983, s 6 applies where there is an agreement to perform work - s 7(2) prevents deductions because of time lost unless because of employee illness, injury, or default - business closedown amounts to time lost - closedown was not a result of illness, injury, or default - employees were entitled to minimum wage during closedown.

[2020] NZEmpC 230 Arachchige v Rasier New Zealand Ltd [PDF, 398 KB] (Judgment of Judge J C Holden, 17 December 2020) APPLICATION FOR DECLARATION OF EMPLOYMENT RELATIONSHIP – applicant is driver for Uber – applicant was previously a taxi driver running a business on his own account – applicant’s work was not exclusive to Uber – applicant was not vulnerable or lacking in comprehension – applicant was in control of work hours, equipment, and tax – applicant had ability to increase profitability in some ways – work is integral to Uber’s business but Uber lacked control over how it was undertaken – industry practice not a helpful consideration – applicant was not an employee of Uber.

[2020] NZEmpC 166 New Zealand Resident Doctors Assoc v Auckland District Health Board [PDF, 336 KB] (Judgment of the Full Court, 14 October 2020) INTERPRETATION OF COLLECTIVE AGREEMENT – employees rotate between employers in different regions of Auckland – whether employees are “new employees” upon each rotation – ordinary meaning of “new employees” should be applied – employees are “new employees” upon each rotation – two possible collective agreements to apply depending on work to be performed – work to be categorised according to the college to which they may be attached.

[2020] NZEmpC 149 Bay of Plenty District Health Board v CultureSafe NZ Ltd [PDF, 438 KB] (Judgment of Judge B A Corkill, 22 September 2020) AUTHORITY JURISDICTION – whether orders made by the Authority were within its jurisdiction – Authority members are equivalent to judicial officers, not mediators – Authority orders can bind representatives of parties – Authority can order representative not to intimidate other party – reasonable limitation on the right to free speech – Authority should not have made order without giving notice to representative – Court has jurisdiction to enforce Authority orders.

[2020] NZEmpC 109 McCook v Chief Executive of the Inland Revenue Department [PDF, 333 KB] (Judgment of Judge B A Corkill, 27 July 2020) CHALLENGE TO OBJECTION AS TO DISCLOSURE – objections to documents were on grounds of relevance, confidentiality, and oppressiveness – confidential documents to be disclosed only to counsel – some documents irrelevant – while search of documents may be difficult, materials should be disclosed - APPLICATION FOR DIRECTIONS AS TO REPRESENTATION – plaintiffs apply to represent 36 other persons – inquiry will be fact-specific – insufficient commonality of interest -  representative approach is not justified.

[2020] NZEmpC 61 Leota v Parcel Express Ltd [PDF, 465 KB] (Judgment of Chief Judge C Inglis, 7 May 2020) NATURE OF EMPLOYMENT – SECTION 6 – real nature of the relationship between a courier driver and a courier company – worker spoke English as a second language – high degree of control – industry practice relevant but not determinative – no ability for worker to grow his own business – worker owned a van but using company finances and specifications – factors point toward a relationship of employment.

[2020] NZEmpC 54 Bennett v Employment Relations Authority [PDF, 279 KB] (Judgment of Judge J C Holden, 30 April 2020) JUDICIAL REVIEW – NATURAL JUSTICE – judicial review available on grounds of natural justice – challenge was not available because applicant was not a listed party in the Authority determination – no breach of natural justice established – application for judicial review not granted.

[2020] NZEmpC 40 Innovative Landscapes (2015) Ltd v Popkin [PDF, 398 KB] (Judgment of Chief Judge C Inglis, 14 April 2020) UNJUSTIFIABLE DISMISSAL – REDUNDANCY – redundancy was genuine but process was insufficient – dismissal was therefore unjustified – one week’s unpaid wages awarded –employer’s financial circumstances do not impact on quantum of compensation - $15,000 awarded for compensation.

[2020] NZEmpC 39 Metropolitan Glass & Glazing Ltd v Labour Inspector [PDF, 283 KB] (Judgment of the full Court, 14 April 2020) ANNUAL HOLIDAYS – INCENTIVE PAYMENTS – whether the company’s short term incentive scheme should be counted under gross earnings – scheme was described as discretionary and was argued to be separate to employment agreements – scheme was actually incorporated into the agreement and had contractual force –description of scheme as discretionary is not relevant – CLOSEDOWN PERIOD – employee’s entitlements when not entitled to annual leave during a closedown period – statute allows only one approach – company was not following that approach.

[2020] NZEmpC 35 Arachige v Rasier New Zealand Ltd [PDF, 142 KB] (Interlocutory Judgment of Judge J C Holden, 19 March 2020) APPLICATION TO ADJOURN HEARING – COVID-19 travel restrictions prevent defendants from attending hearing – interests of justice require adjournment – adjournment granted.

[2020] NZEmpC 13 Elisara v Allianz New Zealand Ltd [PDF, 223 KB] (Costs Judgment of Judge Chief Judge C Inglis, 26 February 2020) COSTS – costs guideline scale – adjustments made for Calderbank offer – award not reduced for reasons of ability of pay – Authority costs award discussed – whether Authority’s notional daily rate is generally appropriate.