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April 2017

Interesting or topical employment cases.

Affco NZ Ltd v Employment Court [2017] NZCA 123

Court of Appeal - Application for judicial review

The employer sought a judicial review of an Employment Court decision on the grounds there had been a breach of natural justice.

The leading precedent provided that the Court of Appeal’s jurisdiction for judicial review of Employment Court decisions was limited and did not include the grounds of natural justice (see para 21-23). The Court rejected the employer’s argument that the New Zealand Bill of Rights Act 1990 required for this precedent to be revisited (see para 35-37). It was a deliberate and rational policy decision for the Employment Relations Act 2000 to limit appeals from the Employment Court to the Court of Appeal (see para 38-39). The application was struck out.

Link to case (external link)


XYZ v ABC [2017] NZEmpC 40

Employment Court - Application for non-publication order

The employee filed a personal grievance after she was suspended by the employer. The employee applied for an interim non-publication order to protect her personal identity. The Employment Relations Authority had declined interim relief and the employer brought a challenge to the Employment Court.

The Employment Court held that the Supreme Court’s decision Erceg v Erceg [2016] NZSC 135 prompted a revaluation of the previous precedent on non-publication orders in the employment jurisdiction (see para 65). Erceg v Erceg represented a stricter approach than the leading precedent H v A Ltd [2014] NZEmpC 92 (see para 63-65). While the Employment Court applied Erceg v Erceg, it noted that, for completeness, the H v A approach was also considered. Application of either case led to the same result (see para 72 and 82).

On the facts, the fundamental principle of open justice applied with strong force, as the employer was a public organisation and the employee held a senior role involving the allocation of public funds (see para 73). Conversely, publication would exacerbate the employee’s pre-existing medical condition and personal difficulties with her ex-partner. The issues with the ex-partner posed a threat to the employee’s safety (see para 75-77). Consequently, the employee had demonstrated to the requisite high standard that the interests of justice required a departure from the usual principle of open justice (see para 81).

The application for an interim non-publication order was granted.

Link to case (external link)


ALA v ITE [2017] NZEmpC 39

Employment Court - Whether breach of compliance order justified - Confidentiality obligations

The employer argued that the employee had breached a compliance order which reinforced confidentiality obligations arising from a settlement agreement. Confidentiality was alleged to have been breached in three ways.

The first related to submissions filed in the High Court by the employee when defending bankruptcy proceedings brought by the employer. The Employment Court held that the submissions were a breach of the compliance order (see para 50). However, the breach was justified on the grounds of public interest. The interests of the administration of justice outweighed the interest in confidentiality (see para 73). If necessary, the High Court could exercise its discretion as to admissibility in order to protect confidential information (see para 75).

The second related to a complaint which the employee filed with the New Zealand Psychologists Board regarding a psychologist who gave evidence for the employer. The Court held that the complaint was in breach of the compliance order (see para 51). However, again, there were countervailing public interest factors justifying the breach. The Board was the proper authority for the consideration of professional disciplinary complaint and the principles of comity meant that it had the responsibility to resolve the issues around confidentiality raised by the employer (see para 99).

The third related to an email that the employee sent to newly elected members of the employer (the employer was a local council). The Court held that these emails had breached the compliance order (see para 52). The breach was not justified on statutory grounds or on public interest grounds (see 108-132). The breach was a deliberate and flagrant disregard of the Court’s order. A fine of $7,500 was imposed.

Link to case (external link)

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