Cases of interest: August 2020

A summary of interesting or topical employment cases.

ANZ Sky Tours Ltd t/a ANZ Sky Tours v Wei [2020] NZEmpC 129

Employment Court – Contempt of court – Obstruction of justice – Obstructing disclosure of documents

At issue was whether the employee was liable for criminal contempt of court for failing to comply with disclosure orders. 

The employer sought to challenge the Employment Relations Authority (the Authority) finding that the employee was constructively dismissed. The employer alleged the employee was not constructively dismissed; rather, she resigned voluntarily to take up another position in order to improve her immigration status. To support that allegation, the employer sought information from the employee’s immigration consultant and from prospective employers the employee applied to for jobs. 

The Employment Court (the Court) on two occasions made orders directing the employee to carry out actions aimed at securing the relevant documents. In response to the first order, the employee produced incomplete documents, several weeks after the deadline. In response to the second order, the employee secured the full file from the immigration consultant. The file showed the employee had initially told the immigration advisor not to disclose certain documents.

The Court found the evidence of the immigration consultant was “overwhelming” as to the steps the employee took to obstruct the immigration consultant from complying with the earlier disclosure orders (see para 23). The Court found the employer failed to meet the criminal standard for proving the employee failed to comply with orders to contact the prospective employers she had applied to (see para 24). 

The Court found no fine was warranted in the circumstances (see para 29). The Court held that while an attempt to obstruct or interfere with the course of justice was a very serious matter, there were mitigating circumstances. The Court had regard to the fact the employee was not well advised by her advocate; the consequences of a fine on a young person trying to immigrate; and the fact the employee was partially motivated by trying to protect her personal information (see paras 26–29).

ANZ Sky Tours Ltd t/a ANZ Sky Tours v Wei [2020] NZEmpC 129 [PDF] (external link)

Smith v Fletcher Concrete & Infrastructure Ltd [2020] NZEmpC 125

Employment Court – Unjustified dismissal – Interim reinstatement pending substantive hearing

At issue was whether the employee should be reinstated pending an investigation into his unjustified dismissal claim in the Authority. 

The employee was employed as Site Engineer/Site Supervisor at a concrete plant. The employee claimed he was unjustifiably dismissed for misconduct after he failed to follow a required safety procedure. The employee sought interim reinstatement to his position pending an Authority investigation into his claim. The Authority declined to order reinstatement. The employee challenged this decision in the Court. 

The Court upheld the decision not to award interim reinstatement. The Court accepted the employee had an arguable case that he was unjustifiably dismissed and an arguable case for reinstatement (see paras 21–22). However, the balance of convenience did not favour reinstatement (see paras 24–34). While the employee was suffering financial difficulties as a result of losing his job, he had obtained a mortgage holiday and was not at risk of losing his house.

The employee could be compensated for lost earnings if he succeeded in his substantive claim. There was no suggestion a gap in employment would mean the employee would not be able to do his job if he was reinstated later. The concerns of the employer (that it had lost trust and confidence in the employee and that other employees had said they would leave if the employee returned) may not be able to be reversed if the employee was given interim reinstatement and the employer later succeeded in defending the employee’s claim; the financial detriment to the employee from not being reinstated could be reversed if he were successful in his substantive claim.

The Court found overall justice did not displace the finding on the balance of convenience (see paras 35–36). The employee acknowledged he did not follow the relevant safety policy. Though he disputed the need to follow the policy, the employee was in a supervisory role on a worksite where health and safety were critical. 

The Court upheld the Authority decision to decline interim reinstatement.

Smith v Fletcher Concrete & Infrastructure Ltd [2020] NZEmpC 125 [PDF] (external link)

Begley v Tech Mahindra Ltd [2020] NZERA 309

Employment Relations Authority – Employee status – Employment Relations Act 2000, ss 63A and 68 – Whether a person who has been offered employment is an employee for the purposes of ss 63A and 68 

At issue was whether someone who was negotiating the terms of an individual employment agreement with an employer, but did not conclude any agreement, was an employee for the purposes of the ss 63A (external link) and 68 (external link) of the Employment Relations Act 2000 (the Act).

The applicant’s original employer decided to transfer some services to another company. As a result, the applicant’s position became redundant. The company taking over the services (the new employer) offered a role to the applicant. 

The applicant considered that the employment agreement with the new employer had terms that were not as good as under her previous agreement and/or were unlawful. The applicant tried to negotiate better terms. The new employer emailed the applicant a final amended employment agreement 16 minutes before the offer of employment was due to expire. The new employer refused to give any extension to the deadline for accepting the offer. 

The applicant did not accept the amended employment agreement. The applicant sought a penalty against the new employer for unfair bargaining under ss 63A (external link) and 68 (external link) of the Act. The new employer claimed ss 63A (external link) and 68 (external link) did not apply to someone who had not entered into an employment agreement.

The Employment Relations Authority (the Authority) determined that the applicant was an employee for the purposes of s 63A (external link) , as she was a “prospective employee” under s 63A(7) (external link) . The applicant was entitled to seek a penalty under s 63A(3) (external link) as the Act did not limit penalty actions to parties in employment relationships (see paras 96–99).

The Authority determined the applicant was not an employee for the purposes of s 68 (external link) . The Authority determined s 68 (external link) is not engaged unless an employment agreement has been concluded (see paras 100–103).

Begley v Tech Mahindra Ltd [2020] NZERA 309 [PDF] (external link)

Page last revised: 16 September 2020

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