Cases of interest: April 2022

A summary of interesting or topical employment cases.

Association of Professionals and Executive Employees Inc v Ministry of Education [2022] NZERA 121

Employment Relations Authority – Jurisdiction – Jurisdiction to investigate employee status  – Employee status of intern in government ministry

Employment Relations Authority – Statement of problem – Whether applicants bound by the wording of their statement of problem – Whether Authority could reframe the problem 

At issue was whether the Employment Relations Authority (the Authority) had jurisdiction to investigate the employment status of someone who was an intern at the Ministry of Education (the MoE) under an “internship scholarship programme”. 

The MoE offered “internship scholarships” to postgraduate students of educational psychology. The second applicant was awarded such a scholarship. Under the scholarship, the second applicant (the intern) was based at the MoE for eight months. During the eight-month period the intern received two lump sum payments of $25,000. 

The relevant multi-union collective agreement (MECA) in effect at the time outlined terms and conditions of employment applying to “intern psychologists”. The applicants (the intern and one of the MECA unions) asked the Authority to consider whether what the intern did during the internship meant she was really an employee; and so was entitled to the terms and conditions applying under the MECA. 

The MoE denied the internship arrangement amounted to employment. The MoE also denied that the Authority had jurisdiction to investigate employee status in this case. The MoE claimed that as the applicants had sought a “declaration” of employee status in their statement of problem, under s 6(5) (external link) of the Employment Relations Act 2000 (the Act), only the Employment Court (the Court) could resolve the matter. 

The Authority considered it was not bound by the fact the parties had sought a declaration in their statement of problem. The Authority noted the finding of the Supreme Court in FMV v TZB [2021] NZSC 102, [2021] 1 NZLR 466, para 58, that if the Authority “considers the parties have not understood the real nature of their problem, it can reframe the problem and resolve that” (see para 20). 

The Authority determined that it did have jurisdiction to determine the employee status of the intern (see para 40). The Authority found that getting a declaration of employee status from the Court under s 6(5) (external link) was an option available to parties, rather than a requirement (see para 30). The Authority considered that “[s] 6(2) clearly provides for the Authority to address and determine such a question if it arises in the course of considering an application to it” (see para 26). 

In coming to its determination, the Authority relied on the interpretation of s 6 (external link) in the superior court decisions Labour Inspector v Gill Pizza Ltd [2021] NZCA 192, [2021] ERNZ 237 and Gill Pizza Ltd v Labour Inspector [2021] NZSC 184 (Gill Pizza) (see paras 26–31). The Authority determined the facts in this case were not so different from those in Gill Pizza that Gill Pizza did not apply (see paras 32–39).

Association of Professionals and Executive Employees Incorporated v Ministry of Education [2022] NZERA 121 [PDF, 160KB] (external link)  

ABC v DEF [2022] NZCA 148

Court of Appeal – Jurisdiction of Employment Court – Jurisdiction to hear challenge to directions of the Authority – Directions to parties to attend mediation 

At issue were directions of the Authority ordering parties to attend mediation and whether it was arguable these could be challenged in the Employment Court. 

The applicant and her former employer signed a record of settlement. The applicant later sought to challenge the record of settlement in the Employment Relations Authority (Authority). The Authority directed the parties to first attempt to resolve their differences in mediation. The Authority suspended its investigation pending the outcome of the mediation. The applicant challenged the direction to mediation in the Court. 

The Court held that it had no jurisdiction to hear the challenge. The Court found that for the purposes of the Employment Relations Act 2000, s 179(5) (external link) , the Authority’s direction to mediation was procedural and so not able to be challenged. The applicant sought leave to appeal the Court decision in the Court of Appeal. 

The Court of Appeal declined to grant leave. The Court of Appeal found there was no arguable case (see para 19):

a direction to attend mediation cannot be anything other than procedural in nature. Such a direction does not affect substantive rights nor impact on the determination of the claim. If the mediation does not resolve the dispute, the claim simply proceeds. All substantive rights are preserved.

ABC v DEF [2022] NZCA 148 [PDF, 230KB] (external link)  

NZDSOS Inc v Minister for Covid-19 Response [2022] NZHC 716

High Court – Judicial review – Vaccination mandates – Orders affecting health practitioners and educators – Whether mandatory vaccinations were a justifiable limit on rights under the New Zealand Bill of Rights Act 1990 

At issue was whether orders imposing mandatory vaccinations against COVID-19 on certain health and education workers were a reasonable and demonstrably justified limit on their rights under the New Zealand Bill of Rights Act 1990 (external link) (the Bill of Rights). 

The COVID-19 Public Health Response (Vaccinations) Order 2021 (external link) (the Order) required certain workers in the health and disability and education sectors to undergo vaccination against COVID-19, in order to continue in their roles. The applicants claimed mandatory vaccinations were an unjustifiable limit on their right to refuse medical treatment under s 11 (external link) of the Bill of Rights. The applicants claimed the right to refuse medical treatment was “absolute” and not capable of justified limitation (see para 40). The applicants sought to have the orders set aside as unlawful. The applicants also claimed that the criteria for qualifying for a vaccine exemption were “unreasonable, irrational or being applied overly rigidly” (see para 35). 

The High Court dismissed the claim that the right to refuse medical treatment under s 11 (external link) was absolute. The High Court noted the claim went directly against the decision New Health New Zealand Inc v South Taranaki District Council [2018] NZSC 59, [2018] 1 NZLR 948 (New Health). In New Health the Supreme Court found water fluoridation involved a justified limit of the right to refuse medical treatment (see para 51).

The High Court also dismissed the claim that the vaccination orders themselves were unjustifiable under the Bill of Rights. The High Court did not accept evidence from the applicants that there were safety issues with the vaccine that meant the mandates were not justified. The High Court found that while there was no long-term safety data, there was nothing in the materials provided to the Court to suggest “that any uncertainties in the long-term are likely to give rise to the identification of unforeseen adverse effects”. The High Court was not satisfied there were unaddressed risks from the vaccine beyond those assessed when the vaccine was approved. The High Court took into account evidence the Pfizer vaccine had been approved in 130 countries and more than 10 billion doses had been administrated (see paras 114120). 

The High Court held that at the time the orders were implemented in October 2021, justification for the mandates existed. In coming to that decision the High Court relied on the following:

  • At that time, the delta variant was dominant and there was evidence vaccination limited its transmission (see paras 132, 134, 165).
  • Adverse effects on individuals affected by the mandates had to be weighed against the impact of COVID-19 spreading in the affected communities (see paras 124126). 

The High Court found in relation to health professionals (see para 157):

the close interaction between health professionals and patients, the patients potential vulnerability, the limitation on the ability of patients to make informed choices, and the need to keep public confidence in health services provided justification for the mandate. 

In relation to the education sector, the High Court found (see para 158):

It was important for students to be able to learn in a school environment, and that environment created a potential transmission risk. In effect the community was requiring significant numbers of children to congregate with others, and with adults. There was a risk of COVID infection for the children, but more particularly a risk to the community that the children interacted with. That potentially justified a risk minimisation approach, albeit the justification is less clear cut than in the health sector.

The High Court held overall that the adverse effects of the mandates on affected people were “not out of proportion to the benefit to…communities in reducing the potential harm caused by COVID-19 itself” (see para 162). The High Court observed that with the arrival of the omicron variant, the mandates may not continue to be justified. By the time the judgment was handed down, the mandate for those in the education sector had already been lifted (see paras 164, 165). 

The High Court did not accept that criteria for qualifying for a vaccine exemption were “unreasonable, irrational or being applied overly rigidly”. The High Court was not satisfied that exemption criteria were too narrow; or that the exemption process should have been decentralised. The High Court held it “was understandable the Ministry of Health decided to centralise the exemption process, and to do so only through clinically prescribed criteria”; otherwise, the process would have been open to abuse from health professionals who were opposed to vaccination (see paras 150, 153, 166). 

NZDSOS Inc v Minister for Covid-19 Response [2022] NZHC 716 [PDF, 190KB] (external link)  

PS v LS & LAS Ltd [2022] NZPSPLA 11

Private Security Personnel Licensing Authority – Investigation of employment matters by private investigator – Whether investigator required to be registered under the Private Security Personnel and Private Investigators Act 2010 

At issue was whether a private investigator, hired by the employer to investigate a workplace bullying complaint, needed to be licensed under the Private Security Personnel and Private Investigators Act 2010 (external link)

The applicant made a complaint of bullying against members of her team at work. The employer hired a private investigator to investigate the complaint. The applicant had concerns about the private investigator’s competency and whether she was qualified to carry out an employment investigation. 

The Private Security Personnel Licensing Authority (the PSPLA) found the private investigator did need to be licensed as a private investigator to carry out an employment investigation. The PSPLA did not recommend prosecuting the private investigator for operating without a license, as the breach was inadvertent and the individual concerned had given assurances she would not act as a private employment investigator without a license in the future (see paras 7, 10, 11). 

PS v LS & LAS Ltd [2022] NZPSPLA 11 [PDF, 180KB] (external link)  

Wang v HungryPanda (NZ) Ltd [2022] NZERA 154

Employment Relations Authority – Employee status – Food delivery driver – Online app delivery service 

At issue was whether a takeaway food delivery driver was an employee or a contractor. 

The respondent provided a food delivery service via an online app. The app allowed customers to order Chinese food items from local restaurants and grocers and to get them delivered through drivers who were also connected to the app. Customers were able to make orders in Mandarin and the service mainly provided for the local Chinese community. 

The applicant was a Chinese immigrant. The applicant had a master’s degree in science from the United Kingdom, but said he sometimes struggled in spoken English. The applicant worked as a takeaway delivery driver for the respondent for almost two months. 

The respondent disconnected the applicant from the app after a restaurant owner complained about his attitude. The applicant raised a personal grievance with the respondent seeking remedies and reinstatement. The respondent claimed the applicant was an independent contractor. In this application the Authority considered only whether the applicant was an employee or an independent contractor. 

The Authority determined that, taking into account the totality of the relationship, how it operated and the objects of the Act, the real nature of the relationship was one of employment (see paras 6668). 

Some factors the Authority took into account were:

  • While the written agreement between the applicant and the respondent stated the applicant was an independent contractor, the agreement was in English; the respondent did not provide a copy of the agreement to the applicant; the respondent did not explain the terms of the agreement; the applicant was not able to get advice on the agreement before signing it (see paras 4648).
  • The applicant had to indicate his availability for rosters in advance; he could not just log in and “grab” orders (see paras 51, 52).
  • While the applicant had a significant degree of choice over when and where he chose to work, the model of business gave the respondent significant control over him when he was working (see paras 4956).
  • While the applicant used his own vehicle, which had no signage, delivery drivers were essential and integral to the respondent’s business model as the only tangible “public face” of the business (see para 57).
  • While the agreement provided that drivers could contract substitute drivers if they were unavailable, this was “a somewhat illusory benefit as the applicant had no guaranteed work to undertake” (see para 57).
  • The applicant had no ability to expand the customer base to his advantage; there was no evidence he was in business on his own account (see paras 49, 59, 60).
  • Take-away food delivery drivers had a greater level of vulnerability when compared to taxi or courier operations which had been considered in other cases (see paras 64, 66). 

Wang v HungryPanda (NZ) Ltd [2022] NZERA 154 [PDF, 240KB] (external link)

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Page last revised: 26 May 2022

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