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August 2016

Interesting or topical employment cases.

Ministry of Health v Lowe [2016] NZCA 369

Court of Appeal – Whether respondent a “homeworker” – Appeal granted

The respondent, a relief carer for a government Carer Support Scheme, argued that she was a homeworker within the meaning of s 5 (external link) of the Employment Relations Act 2000. A Full Court of the Employment Court (external link) had previously held that she was a “homeworker”.

The Court of Appeal held that the respondent was not “engaged” by the appellants for the purposes of s 5 (see para 37). The appellants had no role in selecting relief carers for the scheme, nor did they make any arrangements for the care to take place. That was the role of the full time carer. The relief carer did not have a relationship with the appellants prior to or while undertaking the care work (see para 26). The appellants simply provided funding and “to hold that third party funding amounts to engagement would be to stray so far from the natural and ordinary meaning of the word “engage” as to ignore it” (para 31). The Court held that if the respondent were engaged by anyone, it would be the full time carer, but then she would not fall under the definition of a “homeworker” (para 28).

The Court allowed the appeal and overturned the Employment Court’s decision that the respondent was a “homeworker”.

Ministry of Health v Lowe [2016] NZCA 369 (external link)


Secretary of Education v New Zealand Educational Institute Te Riu Roa [2016] NZEmpC 100

Employment Court – Contractual interpretation – Annualisation of pay

The parties were involved in a dispute over the interpretation of clauses in their collective agreement concerning “annualisation” of pay, and whether it should be paid over 27 pay periods rather than 26.

The Employment Court held that the collective agreement required the plaintiff to pay employees annualised pay over 26 pay periods instead of 27 (see para 72). The parties were directed to discuss further how to implement annualisation agreements, with leave reserved to seek further directions if necessary.

Secretary of Education v New Zealand Educational Institute Te Riu Roa [2016] NZEmpC 100 (external link)


Weir v Corporate Consumables Ltd [2016] NZERA Wellington 88

Employment Relations Authority – Removal to Employment Court

Two of the applicants sought to have their claims removed to the Employment Court. They claimed that there was an important question of law to be heard on:

whether an employer can rely on the words “unless the context otherwise requires” in the definition of “gross earnings” in s 14 (external link) of the Holidays Act 2003 to exclude commission payments (or other contractual payments) when calculating employees’ gross earnings for the purpose of annual holiday pay [see para 15]

The Employment Relations Authority considered that there was an important question of law to be heard, as the phrase had not yet been the subject of judicial scrutiny in the context of that section. Further the problem had a potentially wider application than just to the specific factual situation of the applicants. The claims were removed.

Weir v Corporate Consumables Ltd [2016] NZERA Wellington 88 (external link)


Clark v Lighthouse ECE Ltd [2016] NZERA Auckland 281

Employment Relations Authority – 90 day trial

This is one of four virtually identical determinations concerning the same employer and the same issues. The others are Du Plooy v Lighthouse ECE Ltd [2016] NZERA Auckland 282 (external link) , Baxter v Lighthouse ECE Ltd [2016] NZERA Auckland 283 (external link) and Honey v Lighthouse ECE Ltd [2016] NZERA Auckland 284 (external link) .

The relevant employment agreements contained a 90 day trial period, where the commencement date of employment was set out in a schedule to the employment agreement. The trial period clause itself did not state when the trial period would begin. The parties disputed whether the trial period clause met the requirements of section 67A(2)(a) (external link) of the Employment Relations Act 2000. The respondent argued that it was clear that the parties intended for the trial period to begin at the commencement of employment.

The Employment Relations Authority found that it was not reasonably implied that the trial period would start on the first day of employment (see para 17). The trial period clause did not refer to the date of commencement of the trial period, nor did it cross reference to the date set out in the schedule to the employment agreement. The Authority applied a strict interpretation of section 67A, in accordance with the Employment Court’s decision in Smith v Stokes Valley Pharmacy [2010] NZEmpC 111 (external link) . It found that the trial period clause did not meet the requirements of the section (see para 25-26) because the applicant was not advised of the start date of the trial period. The respondent could not rely on the trial period clause.

Clark v Lighthouse ECE Ltd [2016] NZERA Auckland 281 (external link)


ASG v Hayne, Vice-Chancellor of the University of Otago [2016] NZSC 108

Supreme Court – Suppression order – Leave to appeal granted

The Supreme Court granted leave to appeal the Court of Appeal’s decision in ASG v Hayne [2016] NZCA 203 (external link) on the questions of:

  • Whether the disclosure of information to the respondent regarding the criminal proceedings faced by the applicant breached s 200 (external link) of the Criminal Procedure Act 2011; and
  • If so, whether the respondent could rely on and use the information in relation to the applicant

ASG v Hayne, Vice-Chancellor of the University of Otago [2016] NZSC 108 (external link)

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