Judgments of note 2023

[2023] NZEmpC 232 Ministry of Business, Innovation and Employment v Duan [PDF, 265 KB] (Judgment of the full Court, 18 December 2023) PARENTAL LEAVE – no entitlement to parental leave if employee returns to work after birth of child – employee was not entitled to parental leave – no discretion to allow payment.

[2023] NZEmpC 224 Medina Trading Ltd T/A Hotel Debrett v Hunter [PDF, 270 KB] (Preliminary Judgment of Judge Kathryn Beck, 7 December 2023) SCOPE OF CHALLENGE – a de novo challenge by definition is a challenge to the entire matter before the Authority – challenge filed by plaintiff was only to part of the determination – challenge is accurately described as a non-de novo challenge.

[2023] NZEmpC 221 Cronin-Lampe v The Board of Trustees of Melville High School [PDF, 1 MB] (Judgment (No 2) of Judge B A Corkill, 5 December 2023) ASSESSMENT OF LIABILITY AND QUANTUM – BREACH OF CONTRACT CLAIMS – express and implied contractual health and safety duties breached – breaches caused the plaintiffs’ PTSD – contractual liability established – PERSONAL GRIEVANCE – unjustifiable disadvantage grievances established – ACCIDENT COMPENSATION ACT 2001 STATUTORY BAR – affirmative defence raised by school – s 317 does not bar the claims because the criteria of s 21B are not made out – TIMEFRAME FOR AWARDS – loss assessed up until notional judgment date of 31 March 2019 – DAMAGES/REMEDIES – non-economic loss awarded – economic loss for lost remuneration, superannuation, capital gain and rental income, plus interest up until notional judgment date, and some medical expenses awarded – no award for interest as damages or dental expenses – no failure to mitigate losses – reasonable to rely upon professional advice to postpone treatment and not to undertake further work – claim for exemplary damages dismissed – failures were not deliberate or conscious – DAMAGES AWARDED – no remedies for personal grievances because quantum of damages is greater and rule against double recovery – CONTRIBUTION – awards reduced by five per cent – COUNTERCLAIMS – dismissed because assertions not established.

[2023] NZEmpC 179 Pyne v Invacare New Zealand Ltd [PDF, 255 KB] (Judgment of Chief Judge Christina Inglis, 25 October 2023) NON-DE NOVO CHALLENGE - REMEDIES - employee was unemployed for a significant period despite attempts at mitigation - 6 months' lost wages awarded - Authority's compensation award insufficiently explained - banding approach applied – - no reduction made for contribution – recommendation does not need to be made - PENALTY FOR BREACH OF GOOD FAITH – egregious bad faith is not required to award a penalty for breach of good faith – breach by the company was intended to undermine the employment relationship - $6,000 penalty awarded.

[2023] NZEmpC 157 Whakarongorau Aotearoa New Zealand Telehealth Services LP v Public Service Association, Te Pūkenga Here Tikanga Mahi [PDF, 201 KB] (Reasons for Judgment of Judge Kathryn Beck, 19 September 2023) APPLICATION FOR INTERIM INJUNCTION AGASINT STRIKE – notice period in issue – strong arguable case employees are employed in an essential service – 14 days’ notice of strike action not provided under s 90(3)(a)(i) of the Employment Relations Act 2000 – public interest in maintaining essential health services – notice period is mandatory – scope of injunction is narrow – balance of convenience favours granting interim injunction – application granted.

[2023] NZEmpC 105 Pilgrim & Ors v Attorney-General & Ors [PDF, 596 KB] (Judgment of Chief Judge Christina Inglis, 13 July 2023) APPLICATION FOR DECLARATION OF EMPLOYMENT STATUS - workers undertook cooking, cleaning, laundry and food preparation duties in religious community - work was rewarded by necessities of life and being permitted to remain in the community - workers were not volunteers - work being "domestic" in nature not a relevant factor - work was in the nature of employment according to objective indicators - employment status is not inconsistent with community's religious freedom - workers were employees - application granted.

[2023] NZEmpC 101 GF v Comptroller of Customs [PDF, 513 KB] (Judgment of Chief Judge Christina Inglis, 30 June 2023) UNJUSTIFIED DISMISSAL – UNJUSTIFIED DISADAVANTAGE – TIKANGA – PUBLIC SERVICE EMPLOYER “GOOD EMPLOYER” OBLIGATIONS – dismissal in relation to COVID-19 vaccine – unvaccinated worker – tikanga a relevant consideration – employer incorporated tikanga/tikanga values into relationship – at very least should have been considered – Public Service Act 2020 good employer standard – heightened obligations on public service employers – deficient communication and engagement with employees choosing not to be vaccinated – no individualised health and safety assessment – predetermined outcome – process failed to meet the baseline fair and reasonable employer standard – breach of good faith – UPDATE TO COMPENSATION BANDS – $25,000 compensation – 3 months’ lost wages awarded – formal recommendations made.

[2023] NZEmpC 75 Te Whatu Ora Health New Zealand v New Zealand Nurses Organisation Inc [PDF, 266 KB] (Judgment of Judge K G Smith, 23 May 2023) APPLICATION FOR INTERIM INJUNCTION AGAINST STRIKE – strike proposed on health and safety grounds – no need for immediate and significant risk under s 84 of the Employment Relations Act 2000 – evidence establishes reasonable belief in health and safety risk – strike is proposed to be short – balance of convenience weighs against interim injunction – application declined.

[2023] NZEmpC 74 Nelmac Ltd v Reunited Employees Assoc Inc [PDF, 339 KB] (Judgment of Judge K G Smith, 16 May 2023) FIXING COLLECTIVE AGREEMENT – CHALLENGE – no breach of good faith by employer – union breached good faith by raising pay claim late and refusing to deal with recognised bargaining agent – Authority was correct to fix collective agreement as a consequence of the breach of good faith – JURISDICTION – Court could not have fixed collective agreement – COSTS – decision was not of public interest such that costs should lie where they fall – daily tariff awarded.

[2023] NZEmpC 69 Halse v Employment Relations Authority [PDF, 292 KB] (Judgment of Judge J C Holden, 2 May 2023) APPLICATION FOR STAY – application for leave to appeal to the Court of Appeal not yet filed – application declined – APPLICATION TO STRIKE OUT JUDICIAL REVIEW – Employment Relations Authority was not required to file a statement of defence – Employment Court jurisdiction to judicially review Employment Relations Authority is limited – no reasonably arguable case for judicial review – judicial review application is vexatious – judicial review application is abuse of process - judicial review struck out.

[2023] NZEmpC 56 Te Whatu Ora – Health New Zealand v Public Service Association, Te Pūkenga Here Tikanga Mahi [PDF, 471 KB] (Judgment of the full Court, 5 April 2023) STRIKES – DECLARATION OF UNLAWFULNESS – proposed strike related to pay equity claim rather than bargaining for a collective agreement – no right to strike under the Equal Pay Act 1972 – strike could not be valid under the Employment Relations Act 2000, s 83.

[2023] NZEmpC 2 The New Zealand Tertiary Education Union Te Hautu Kahurangi O Aotearoa Inc v Vice Chancellor of the Auckland University of Technology [PDF, 259 KB] (Judgment of Judge K G Smith, 19 January 2023) APPLICATION FOR ENFORCEMENT OF COMPLIANCE ORDER – compliance order was made in Authority to follow collective agreement during restructuring process – compliance order has been breached – employer fined $3,000.