Cases of interest: February 2021

A summary of interesting or topical employment cases.

Bowen v Bank of New Zealand [2021] NZEmpC 6

Employment Court – Privilege – Whether overheard telephone call privileged

At issue was whether a phone call, between a lawyer acting for the employer and the employer’s Employee Relations Manager, was privileged. 

The employee and her representative; the employer and his lawyer; and a member of the Employment Relations Authority (the Authority); all took part in a case management conference call, from three separate locations. After the Authority member concluded discussions, the lawyer continued talking to the employer, thinking that the conference call had ended. Unknown to the lawyer, the employee could still hear the conversation and was recording it.

The employee used information from the conversation as evidence in an affidavit she later filed in the Employment Court (the Court). The employee subsequently removed the information in question from the affidavit; however a copy of the original affidavit remained on file at the Court. 

The employer sought a decision from the Court as to whether it had privilege over the information originally put in the affidavit. It also applied for an order that the employee destroy the recording. The employee claimed that because she had removed the relevant evidence from her affidavit there was no longer a live justiciable issue and no further orders were warranted. 

The Court was satisfied there was still a live justiciable issue to be decided, as there was a strong possibility of the communication being raised in evidence and the original affidavit remained on the Court file (see para 14).

The Court found the conversation was privileged as it took place immediately after the case management conference and it touched on topics inherently connected to the lawyer’s provision of legal services in ongoing proceedings (see para 20). The Court found it was clear there was an intention that the communication was to be confidential (see para 21). 

The Court held there was no authority for the submission that the failure to take precautions to maintain confidentiality meant privilege did not apply (see paras 22, 27–29). The Court found disclosure of the conversation was involuntary and a mistake and therefore there was no waiver of privilege (see paras 29, 37, 39).

The Court ordered the employee to redact the information on the relevant affidavit filed in Court. The Court declined to order that the employee destroy the recording of the conversation. The Court held that establishing that the communication was confidential and privileged and should be treated as such was sufficient (see para 41).

Bowen v Bank of New Zealand [2021] NZEmpC 6 [PDF 250KB] (external link)  

Disabilities Resource Centre Trust v Maxwell [2021] NZEmpC 14

Employment Court – Raising a personal grievance – Whether employee raised personal grievance with employer

Employment Court – Raising a personal grievance out of time – Whether relying on wrong advice from an employment advocate is an “exceptional circumstance” under the Employment Relations Act 2000, s 115 

At issue was:

  • Whether a letter drafted by the employee’s advocate successfully raised a personal grievance.
  • If not, whether the Court should grant the employee leave to raise a personal grievance out of time.

The employee was dismissed for providing false timesheets. The employee claimed the dismissal was unjustified. The employee’s advocate drafted a letter for the employee to give to the employer for the purpose of raising a personal grievance over the dismissal. The employee adopted the letter in its entirety and gave it to her employer. The letter said the employee’s dismissal was “unfair” but did not spell out how the dismissal was unfair.

The employer claimed the letter did not give sufficient detail to raise a personal grievance. The advocate wrote another letter a month later, that did give sufficient detail, but that letter was written more than 90 days after the employee’s dismissal. The employer claimed that the employee did not raise a personal grievance in time.

The Authority determined that the employee’s letter was sufficient to raise a personal grievance, when looked at in conjunction with the employee’s other communications with the employer during the disciplinary process.

The Court did not accept that statements the employee made prior to her dismissal formed part of the communication of the personal grievance (see para 19). However, the Court found the first letter was sufficient to raise a personal grievance in any case. The Court held the statement in the letter saying that the dismissal was “unfair”, though “not ideal”, was enough to raise a personal grievance under the Act, s 114(2) (external link) (see paras 21–22).

The Court observed that even if the first letter had not raised a personal grievance, exceptional circumstances would have allowed the employee to raise the personal grievance out of time. The Court considered that the exceptional circumstances that would apply under s 115(b) of the Act (external link) if the advocate himself sent a deficient letter to the employer, would also apply if the employee adopted the advocate’s deficient letter and sent it to the employer (see paras 25–27). 

Disabilities Resource Centre Trust v Maxwell [2021] NZEmpC 14 [PDF 200KB] (external link)  

Samuels v Employment Relations Authority [2021] NZEmpC 9

Employment Court – Costs against the Authority – Whether threshold met for awarding costs against the Authority 

At issue was whether the Court should award costs against the Authority.

The applicant was an employment advocate. In an earlier proceeding the advocate was partially successful in a judicial review of an Authority costs determination. In its decision on the judicial review, the Court found the Authority member breached natural justice when the Authority member did not provide the advocate with an opportunity to be heard prior to determining costs and making a statement about the advocate.

The advocate sought costs against the Authority in relation to the judicial review. The Authority opposed the application on the basis it was immune from costs as judicial officers, save for in exceptional circumstances.

The Court had not previously considered whether Authority members were judicial officers. The Court accepted that based on (see para 5):

  • section 176 of the Act (external link) which refers to proceedings in the Authority as “judicial proceedings”
  • the treatment of Legal Complaint Review Officers as judicial officers by the High Court in various decisions
  • the treatment of coroners by the Court of Appeal in Coroner’s Court v Newton [2006] NZAR 312 (CA) (Newton)

the approach to costs against Authority members should be the same as the approach taken with costs claims against other judicial officers:

[5]…the usual approach, namely that costs follow the event, does not apply and the Court will be slow to award costs against the Authority absent compelling circumstances.

The Court declined to impose costs. The Court held the procedural breach in this case was not sufficiently egregious or warranting of disapproval to meet the threshold for imposing costs set by the Court of Appeal in Newton (at paras 44–46 of that decision) (see paras 6–9). 

Samuels v Employment Relations Authority [2021] NZEmpC 9 [PDF 180KB] (external link)

Gill v Restaurant Brands Ltd [2021] NZERA 61

Employment Relations Authority – Temporary migrant – Unjustified disadvantage – Failure by employer to assist with new temporary work visa 

Employment Relations Authority – Temporary migrant – Unjustified dismissal – Dismissal prior to expiry of work visa 

At issue was:

  • Whether the employer unjustifiably disadvantaged the employee by failing to assist him in applying for a new temporary work visa.
  • Whether the employer unjustifiably dismissed the employee when the employer appointed another person to the employee’s position three weeks prior to the employee’s temporary work visa expiring.

The employee was employed as Assistant Restaurant General Manager in a permanent position. When the employee started in the role, the employee’s open work visa was due to expire shortly.  The employer at that time assisted the employee to obtain a two-year employer assisted work visa. The employee said he expected the employer would continue to assist him with visa matters.

Some months in advance of the expiry of the employer assisted work visa, the employee emailed the employer asking for documentation to support his application for an essential skills work visa (by that time an essential skills visa was the applicable visa). The employer responded some weeks later. The employer noted that the employee’s work visa was due to expire and pointed out that the employee would need a valid work visa to continue his employment. The email made it clear the employee’s employment would terminate on the date of the expiry of his visa unless he provided evidence he had obtained a new visa. Shortly afterwards the employer “opened” the employee’s position for applications. The employee applied for the position thinking it was a formality.

Three weeks prior to the expiry of the employee’s employer assisted visa, the employer phoned the employee to tell him his application to retain his position was unsuccessful and as a result the employer could not support his application for a new visa. The employer told the employee a New Zealand citizen had been appointed to the position. The employee took the phone call as notice of dismissal.

The day before the employee’s visa was due to expire the employer emailed the employee to inform him that if he did not provide a copy of a visa before the end of the next day his employment would be terminated.

The employee claimed he was unjustifiably disadvantaged by the employer’s failure to assist with his visa application; and he was unjustifiably dismissed when the employer appointed another person to his position. The employer said it did not assist with the visa as it thought the employee had no prospect of success.

The Authority found that the employer unjustifiably dismissed the employee by replacing him before the expiry of his visa (see paras 31 and 32(c)). The Authority found the employer also unjustifiably disadvantaged the employee by (see para 32):

  • failing to assist the employee with a visa while giving the impression it was going to assist him
  • not being open and communicative with the employee about the fact it was actively seeking to replace the employee because it believed he would not be successful in getting a visa
  • second-guessing what the outcome of the application of a visa application would be and predetermining that the employee would not want to waste money on it.

The Authority ordered the employer to pay the employee $18,000 compensation under s 123(1)(c)(i) (external link) of the Act, without any deduction for contribution (see para 34). The Authority did not award lost wages as the employee did not have a visa that would have allowed him to work after his dismissal (see para 33). 

Gill v Restaurant Brands Ltd [2021] NZERA 614 [PDF 350KB] (external link)

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Page last revised: 30 March 2021

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