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December 2015 - January 2016

Lumsden v Skycity Management [2015] NZEmpC 225

Employment Court - Interpretation of cl 12A of Sch 2 of the Employment Relations Act - Meaning of frivolous

The Employment Relations Authority dismissed part of the employee’s claim on the basis it was frivolous per cl 12A of sch 2 of the Employment Relations Act 2000. The Authority found part of the claim referred to allegations already dealt with in a settlement agreement. The Employment Court held that the employee’s challenge raised issues about the scope and proper application of cl 12A. The Court held that only a whole matter rather than a part of a matter can be dismissed under cl 12A: paras [11]-[21]. The Court held there was a distinction between a case which lacked legal merit and one which is frivolous: paras [26] - [35]. A matter is frivolous where it lacks the degree of seriousness required to engage the attention of the Authority: para [37].

The fact the settlement agreement was executed under s 149 (signed by a mediator etc) did not mean it was immune from scrutiny for situations like duress, misrepresentation or inducement: para [44]. It was possible that the settlement agreement was only full and final to the extent of the claims that both parties were aware of at the time they entered into the agreement: para [45]. The employee’s argument that he was duped into signing through the settlement agreement raised issues about the interrelationship between s 238 (no contracting out) and s 149: para [46]. The challenge was allowed.

Lumsden v Skycity Management [2015] NZEmpC 225 (external link)


FIRST Union Inc v Jacks Hardware and Timber Ltd [2015] NZEmpC 230

Employment Court - Interpretation of s 33 of the Employment Relations Act 2000 - Whether genuine reason and reasonable grounds to conclude bargaining

The union claimed that the employer acted unlawfully in unilaterally declaring that collective bargaining had concluded. In a preliminary judgment, the Employment Court held that the old version of s 33 of the Employment Relations Act 2000 (before the 6 March 2015 amendments) applied. This section had received little judicial attention. It provided that good faith required a union and employer to conclude a collective agreement unless there was a “genuine reason” based on “reasonable grounds” not to. The employer had withdrawn from bargaining, since it refused on philosophical grounds to negotiate over its remuneration system. The Court examined the meaning of s 33: paras [83] - [97]. It held that the employer’s failure to properly administer its current remuneration system,and an offer it made during bargaining, cast doubt on the genuineness of the employer’s objection to changing its existing remuneration system: paras [135] - [143]. Further, considering that remuneration was fundamental to an employment relationship, refusing to negotiate over it was not a reasonable ground to cease bargaining: paras [147] - [149]. Accordingly, the parties remained in collective bargaining.

FIRST Union Inc v Jacks Hardware and Timber Ltd [2015] NZEmpC 230 (external link)


New Zealand Post Primary Teachers' Association v Secretary for Education and Ors [2015] NZERA Wellington 116

Employment Relations Authority - Whether Teachers were appointed according to collective agreement and State Sector Act 1988

Teach First is a post-graduate diploma during which participants are employed in schools for fixed terms. This involves spending some time teaching classes unsupervised.  The participants are proffered to the schools who have an opportunity to vet them, but the role is invariably filled by a Teach First participant.

The Employment Relations Authority found that the positons occupied by Teach First participants were ordinary full time teaching positions: para [35] - [43]. Consequently, the relevant collective agreement and the State Sector Act 1988 regulated the appointments to these positions. The positions needed to be advertised and the best person for the job must be appointed. The positions had not been advertised: para [48]. As the Teach First participants were not qualified teachers and other qualified teachers lacked the opportunity to apply for the roles, it was unlikely that the best person would be appointed: para [52]. The Authority rejected the respondent’s attempts to create a new class of employee: para [58]-[61]. The appointments made under the Teach First programme were found to be in breach of the collective agreement and the State Sector Act 1988.

New Zealand Post Primary Teachers' Association v Secretary for Education and Ors [2015] NZERA Wellington 116 (external link)


Magill (Labour Inspector) v Rapport Enterprises Ltd [2015] NZERA Auckland 309

Employment Relations Authority - Quantum of awards - Cultural mitigating factor

The employer was penalised for failing to keep proper records. The employer had disposed of records of Bangladeshi workers who were not legally entitled to work in New Zealand.  The employer admitted to the breach and the Employment Relations Authority found that it was deliberate: para [32]. However, the employer claimed mitigating factors. The director of the employer company was a Bangladeshi who had been ostracised from the local Bangladeshi community. In order to regain standing, the director felt obliged to employ the Bangladeshi workers and had disposed of the records so that the workers would not get in trouble. The Authority accepted that this cultural imperative would have made it incredibly difficult to refuse the migrants work: para [33]. Although the workers were vulnerable migrants, it was difficult to accept that the workers were exploited: para [29]. The Authority prescribed a $4,000 penalty (cf. to a $10,000 penalty the Authority awarded in a similar case without the cultural factor).

Magill (Labour Inspector) v Rapport Enterprises Ltd [2015] NZERA Auckland 309 (external link)


Bărbulescu v Romania [2016] ECHR 61

European Court of Human Rights - Balance between employee’s right to privacy and employer’s right to surveillance in a disciplinary context

The employee used a Yahoo Messenger (YM) work account for the purpose of responding to clients’ enquiries. The employer’s policy strictly prohibited personal use on company computers. During disciplinary proceedings, the employee maintained he only used YM for professional purposes. The employer produced evidence it gathered from monitoring the YM communications which showed personal use. The employee was dismissed and after unsuccessful claims in the Romanian courts, brought his complaint to the European Court of Human Rights under Article 8 of the European Convention of Human Rights which protects privacy.

The ECHR held that there was nothing to indicate the Romanian courts failed to strike a fair balance between the applicant’s right to privacy and his employer’s interest. The employer acted within its disciplinary powers and only accessed YM in the belief that it contained professional messages: para [57]. The content of the personal messages was used only to the extent that it proved the applicant’s breach and the monitoring was proportionate: paras [58] and [60]. Article 8 was not breached.

Bărbulescu v Romania [2016] ECHR 61 (external link)


Jetstar Airways Limited v Richard Greenslade [2015] NZSC 187

Supreme Court - Interpretation of s 69ZH(2) of the Employment Relations Act 2000

The Supreme Court rejected leave to appeal the Court of Appeal’s interpretation of s 69ZH(2) of the Employment Relations Act 2000. This provided entitlements to rest breaks. The Supreme Court held that Jetstar’s interpretation of s 69ZH(2) was strained: para [7].

Jetstar Airways Limited v Richard Greenslade[2015] NZSC 187 (external link)

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