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May 2016

Interesting or topical employment cases.

ASG v Hayne, Vice-Chancellor of the University of Otago [2016] NZCA 203

Court of Appeal – Suppression order – Appeal denied

The employee, a security guard, pleaded guilty to criminal charges of a violent nature. He was discharged without conviction and granted a suppression order on the ground that he was likely to lose his job if publicly convicted. A staff member who attended the trial reported the charges to management. The Court of Appeal upheld the Employment Court’s finding that this was not a breach of the suppression order as the employer had a genuine interest in the information. The duty of good faith obliged the employee to inform his employer about the charges: para [32]. Suppression orders were not intended to prevent employers from being notified of employees’ conduct which raised obvious concerns about their ability to perform their job: para [45]. The Court criticised the grounds under which the suppression order was granted: para [47] - [51]. The employer was legally obliged to ensure the employee could safely carry out his role. It should be for an employer to decide how a prosecution, with or without conviction, might affect the employee’s employment.

ASG v Hayne, Vice-Chancellor of the University of Otago [2016] NZCA 203 (external link)


Ritchies Transport Holdings Ltd v Merrennage [2016] NZCA 191

Court of Appeal – Unpaid suspension - Leave to appeal denied

The employee, a bus driver, was twice accused of indecent assault while on the job. Neither allegation resulted in a conviction. The Employment Court had held the employer’s disciplinary process was fundamentally flawed and that the employer was not entitled to suspend the employer without pay in the absence of an applicable provision in the employment agreement or workplace policy. The employer applied for leave to appeal to the Court of Appeal, arguing in part that it should not have to pay reimbursement for lost wages during the period of the unpaid suspension. The employer’s reasoning was that since the employee’s passenger licence had been cancelled he was unable to perform his job during the suspension period. The Court distinguished Miles v Wakefield Metropolitan District Council [1987] UKHL 15; [1987] AC 539 (HL) on the grounds that the employee had not refused to work and the employee was suspended before his licence was cancelled: para [11]. Leave to appeal was denied.

Ritchies Transport Holdings Ltd v Merrennage [2016] NZCA 191 (external link)


Te Riu Roa v Secretary for Education [2016] NZERA Wellington 50

Employment Relations Authority - Interpretation of collective agreement - Annualisation of pay

The parties’ collective agreement provided for the annualisation of income to accommodate school support staff who would otherwise go unwaged during school closedown periods. Due to a calendar quirk, the year at issue had 27 pay periods rather than the ordinary 26. To adjust for this, the employer proposed to reduce the school support staff’s annualised pay by 3.7 percent for each pay period. The Employment Relations Authority found that the collective agreement required that pay was annualised over a period of 12 months and that annualisation over a longer period (i.e. 27 pay periods) could not be imposed unilaterally: para [30]-[31]. The parties were directed to mediation in order to attempt to reach an agreement as to how to resolve the issues raised by the calendar quirk.

Te Riu Roa v Secretary for Education [2016] NZERA Wellington 50 (external link)


Wang v New World Market Ltd [2016] NZERA Auckland 124

Employment Relations Authority – Unjustified dismissal – Discrimination on grounds of age and disability

The employer admitted that it had dismissed the employee in part because of the employee’s reaction when the employee lost personal property at work.  The employee had told the employer that he suffered from Asperger Syndrome, which may have influenced his reaction to the lost property.  The employer also told the employee that his employment was terminated because it required someone in their 40s who would be more stable. The Employment Relations Authority found that in dismissing the employee the employer had relied on reasons based on the discriminatory grounds of age and disability: para [96] and [100].

Wang v New World Market Ltd [2016] NZERA Auckland 124 (external link)

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