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July 2016

Interesting or topical employment cases.

New Zealand Air Line Pilots’ Association Incorporated v Air New Zealand Limited [2016] NZSC 84

Leave to Appeal - s 214 of the Employment Relations Act 2000

The appellant union’s collective agreement with the employer provided that if the employer entered into a collective agreement with any other union which had more favourable terms, then that agreement would pass on to appellant union members. The parties disputed the application of this clause. The Court of Appeal held that it had the jurisdiction to hear an appeal on the matter under s 214 of the Employment Relations Act 2000 because it determined that the Employment Court had misapplied the principles of contractual interpretation. The Supreme Court granted leave to appeal on the question of whether the Court of Appeal should have dismissed the appeal for lack of jurisdiction.

New Zealand Air Line Pilots’ Association Incorporated v Air New Zealand Limited [2016] NZSC 84 (external link)


Radius Residential Care Ltd v The New Zealand Nurses Organisation Inc [2016] NZEmpC 86

Employment Court - Interparty disclosure - Reg 39(2) of the Employment Court Regulations 2000

The employer claimed that its employees engaged in unlawful strike action. An issue arose over the application of reg 39(2) of the Employment Court Regulations 2000. This provides penalty proceedings are excluded from the disclosure regime provided by regs 40-52. The employer had claimed various remedies including that a penalty be imposed. The Employment Court held that reg 39(2) does not prohibit document disclosure per se in cases where the proceedings include a penalty claim. It will be for the Court to determine whether the disclosure of documents will infringe the common law privilege against self-incrimination. The Court confirmed that there was such a privilege in the context of proceedings for civil penalties (see paras 28-32). Relying on its powers under ss 189 and 221(d) of the Employment Relations Act 2000, the Court directed the defendants to disclose the general nature of the relevant documents and confirm whether they asserted privilege against self-incrimination or any other recognised classes of privilege.

Radius Residential Care Ltd v The New Zealand Nurses Organisation Inc [2016] NZEmpC 86 (external link)


Hemmingson v Swan t/a Barker’s Groom Room [2016] NZERA Auckland

Employment Relations Authority - Constructive dismissal - Transgender employee’s decision to transition

The employee, a transgender woman, worked as a hairdresser. The Employment Relations Authority found that the employee was constructively dismissed after she told her employer that she decided to transition to a woman. The Authority found that the employer had told the employee that the transition would make clients uncomfortable, that it would raise ‘safety concerns’ in the workplace because of likely adverse comments from clients, and that her transition was not on brand or inconsistent with the brand message of the business (see para 29). The way in which the employer dealt with the employee’s disclosure of her transition amounted to a fundamental breach of trust and confidence (see paras 30-31). The employer approached the situation with a pre-determined view that the employee’s decision to transition did not suit the business and the employee did not have a fair or reasonable opportunity to talk through the issues. When the employee told her employer that she was unable to continue acting as a man to attend work, the employer asked her if she wanted to resign. This effectively gave the employee no choice but to leave work immediately (see para 36). The employee was awarded $11,000 compensation under s 123(1)(c)(i).

Hemmingson v Swan t/a Barker’s Groom Room [2016] NZERA Auckland (external link)


Lumsden v Skycity Management Ltd [2016] NZERA Auckland 242

Removal to Employment Court - Interrelationship between ss 149 and 238 of the Employment Relations Act 2000

The employee claimed that the employer had breached its obligation of good faith by inducing him to sign a settlement agreement, which it then breached. The employer argued that s 149 applied which restricted a party’s ability to revisit a settlement agreement. The employee argued that s 149 must be read subject to s 238 which prohibits contracting out of the Employment Relations Act 2000. The Employment Relations Authority found that this was a matter which involved an important question of law in respect of the relationship between ss 149 and 238 (see para 19). The matter was removed to the Employment Court.

Lumsden v Skycity Management Ltd [2016] NZERA Auckland 242 (external link)


AFFCO New Zealand Ltd v New Zealand Meat Workers and Related Trades Union Inc [2016] NZERA Christchurch 117

Removal to Employment Court - Duty of good faith in relation to online publications outside context of collective bargaining

The employer claimed that the union breached the duty of good faith through a series of postings on a union website and on Twitter. The Employment Relations Authority found that there were two important questions of law giving rise to grounds for removal to the Employment Court (see para 49). First, whether the duty of good faith applied to publications made by unions which were not connected any of the matters listed in s 4(4) of the Employment Relations Act 2000. Second, whether the union owed a duty of good faith under s 32 of the Employment Relations Act in respect of publications that are not directly connected to bargaining but are made while bargaining is still being undertaken. The matter was removed to the Employment Court.

AFFCO New Zealand Ltd v New Zealand Meat Workers and Related Trades Union Inc [2016] NZERA Christchurch 117 (external link)

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