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February 2017

Interesting or topical employment cases.

New Zealand Basing Ltd v Brown [2017] NZSC 12

Supreme Court - Leave to appeal granted

The Supreme Court granted leave to appeal on the question of whether the Court of Appeal was correct to conclude that age discrimination provisions of the Employment Relations Act 2000 did not apply to New Zealand based employees where the employment agreement stipulated that the relationship was subject to the laws of Hong Kong.

Link to case (external link)


Xtreme Dining t/a Think Steel v Dewar [2017] NZEmpC 10

Employment Court - Whether costs should include GST - Assessment based on actual costs

The Employment Court considered whether the costs award should include GST. It cited the recent Court of Appeal judgment of New Zealand Venue and Event Management Ltd v Worldwide NZ LLC [2016] NZCA 282 (external link) , which set out when costs should include GST (see para 42).

The Court found that the particular facts called for an approach that required an assessment based on the defendant’s actual costs, rather than a scale approach (see para 32). In these circumstances, the Court should consider whether or not the successful party is able to recover GST. If GST is recoverable, costs should not include GST. If GST is not recoverable, then costs should include GST. Note that the position differs for scaled costs (see New Zealand Venue and Event Management Ltd v Worldwide NZ LLC [2016] NZCA 282 (external link) at para 7-10).

On the facts, the defendant was not GST registered and was unable to recover GST. Accordingly, the costs award included GST (see para 45).

Link to case (external link)


Spotless Facility Services NZ Ltd v Mackay [2017] NZEmpC 15

Employment Court - Scope of s 122 of the Employment Relations Act 2000 - Power to consider different type of personal grievance from that alleged

The Employment Relations Authority had previously found that the employee had been constructively dismissed. The employer brought a non de novo challenge to the Employment Court, which held that the employee was not constructively dismissed. However, the Employment Court invited submissions as to whether it should consider the possibility that there was a disadvantage grievance.

At issue was the scope of s 122 (external link) of the Employment Relations Act 2000. This section provides that the Court or Authority can find a different type of personal grievance from that alleged. The employer argued that its challenge was limited to a single incident and to allow a disadvantage claim would effectively permit a new wider claim.

The Employment Court held a liberal or broad approach to s 122 was appropriate (see para 45). The possibility of a disadvantage grievance arose from the matters that were put in issue by the non de novo challenge (see para 47). Although the employer’s statement of claim referred to one incident, that incident could only be understood by reference to preceding events which were clearly at issue in the challenge (see para 55).

Accordingly, the Court had jurisdiction under s 122 to consider whether the employee was unjustifiably disadvantaged.

Link to case (external link)

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