Cases of interest: April 2024

A summary of interesting or topical employment cases.

Attorney-General v Fleming [2024] NZCA 92

Court of Appeal – Employee status – Homeworker – Family caregiver

The main issue was whether the Employment Court was correct when it declared a mother, who was the caregiver of her severely physically and mentally disabled adult son, was an employee of the Ministry of Health (Ministry).

The mother has been funded to stay home and care for her son under the “Individualised Funding” funding scheme since 2021. The Employment Court found she was a homeworker as defined in section 5 (external link) of the Employment Relations Act 2000 (the Act):

homeworker —

(a) means a person who is engaged, employed, or contracted by any other person (in the course of that other person’s trade or business) to do work for that other person in a dwellinghouse (not being work on that dwellinghouse or fixtures, fittings, or furniture in it) …

The Employment Court found the mother was therefore an employee under section 6 (external link) . It further found the Ministry was her employer. The Crown appealed the Employment Court’s decision to the Court of Appeal.

The Court of Appeal found the mother was not a homeworker as defined in the Act because she was not “engaged” by the Ministry. It said there must be an identifiable event (or series of events) that would change the mother’s status from engaged to not engaged (see paragraph 58). The Court of Appeal held that the Ministry being aware that the son required care was not sufficient to show it had engaged the mother. Something more was required. The Court of Appeal found there was no specific point at which the mother was engaged by the Ministry (see paragraphs 65–67).

The Court of Appeal found the Employment Court had overstated the nature of the Crown’s obligation under article 19 (external link) of the Convention on the Rights of Persons with Disabilities. It considered that the Crown was obligated to provide support mechanisms to allow people with disabilities to live independently, but that was not the same as being directly responsible for their care (see paragraph 84).

The Court of Appeal also found that even if the mother had been an employee, the Employment Court erred in finding the mother had a personal grievance on the basis of discrimination. The Court of Appeal allowed the appeal (see paragraph 135).

Attorney-General v Fleming [2024] NZCA 92 (external link)

Joyce v Ultimate Siteworks Ltd [2024] NZEmpC 64

Employment Court – Personal grievance – Unjustified dismissal – Costs

At issue was whether an employee was dismissed, and if so, whether he was unjustifiably dismissed.

The employee was a machine operator for a small civil earthworks company. He had the use of a company vehicle. The employer allowed him to park the vehicle, a ute, at home so he could use it to get to and from work each day. The employee incurred 6 speeding tickets in the ute in the first 3 months of his employment. He was required to pay the fines. Over the Christmas closedown period, the employee had an accident in the ute. The employer was concerned and asked him not to use the ute for personal use. The employee took exception to this request, saying he had put his own car in storage because he did not have room to park both. He said if he was unable to use the vehicle for personal use, he would have to hand in his notice. In subsequent communication between the parties, the employee asked if he could work less than his notice period in order to start another role. The employer told him not to worry about returning after the closedown period. The employee raised a personal grievance for unjustified dismissal.

The Employment Court found the employee was not dismissed (see paragraph 42). It said the employee initiated the termination of his employment. The employer had no intention of dismissing him when it asked for the company vehicle to be returned (see paragraph 39). The Employment Court also dismissed the employee’s appeal on the level of costs awarded by the Employment Relations Authority (Authority). The Employment Court agreed that he should pay the employer $5,750 towards its legal costs in the Authority (see paragraph 47).

Joyce v Ultimate Siteworks Ltd [2024] NZEmpC 64 (external link)

Chen v Bread of Life Christian Church in Auckland [2024] NZERA 198

Employment Relations Authority – Personal grievance – Unjustified dismissal – Fixed term – Permanent reinstatement

At issue was whether a pastor had been unjustifiably dismissed and would be permanently reinstated to his position.

The employee was the Principal Pastor at a church. The church was a registered charitable trust with an incorporated trust board. The employee was a member of the board. The board was split by a conflict between its members. It was unable to make decisions due to constant deadlocks. The board stopped paying the employee 2 years ago, but he continued performing the role without pay. The employee claimed the board dismissed him when it stopped paying him. The opposing side of the board said that he was not an employee, or in the alternative, a fixed term employee.

The Authority found in a preliminary determination (Chen v Bread of Life Christian Church in Auckland [2023] NZERA 298) (external link) that the Principal Pastor was an employee. The Authority found the fixed term agreement did not comply with the requirements in section 66 (external link) of the Act because (see paragraphs 56–80):

  • The parties had not agreed on a fixed term.
  • The parties had not agreed on an end date.
  • The employer did not have a genuine reason for using a fixed term.
  • A reason for the employment ending was not included in the employment agreement.

The Authority found the board’s decision to stop paying the employee was a fundamental breach of the terms of his employment that amounted to a dismissal (see paragraph 82). It held the board failed to act in good faith or comply with procedural fairness obligations. The dismissal was unjustified (see paragraph 103).

The employee did not seek compensation. The Authority ordered the board to pay him for any outstanding wages from the period he was not paid (see paragraph 122). It permanently reinstated the pastor to his position (see paragraph 133). The Authority made a list of recommendations to the employer (see paragraph 146).

Chen v Bread of Life Christian Church in Auckland [2024] NZERA 198 (external link)

Ford v Haven Falls Funeral Home Ltd [2024] NZERA 224

Employment Relations Authority – Casual employee – Personal grievance – Unjustified dismissal

At issue was whether a casual employee could have a personal grievance for unjustified dismissal.

The employer was a funeral home. The employee was employed on a casual basis. The parties agreed the employee would fly from his home in Whanganui to Auckland and Whangarei for a training period. The training was expected to take 8 weeks. After 3 weeks, the parties agreed the employee would take a break from training and return home. The employer had concerns with the employee’s performance. The employer terminated the employment. It paid the employee for the next week. The employee raised a personal grievance for unjustified dismissal. The employer said it was entitled not to continue the training and employment due to the casual nature of the employment.

The Authority considered whether the employee was a permanent employee. It found that he was not (see paragraph 39). However, the Authority held the employer had committed to an initial engagement for training. It found the employer failed to engage in any meaningful process when it dismissed him during that engagement. The employee was therefore unjustifiably dismissed (see paragraphs 61–63).

The Authority ordered the employer to pay the employee 4 weeks’ lost wages and $20,000 compensation (see paragraphs 72 and 78).

Ford v Haven Falls Funeral Home [2024] NZERA 224 (external link)

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