Cases of interest: July 2018

A summary of interesting or topical employment cases.

Corrections Association of New Zealand Inc v Chief Executive of the Department of Corrections [2018] NZCA 268

Court of Appeal – Variations to collective agreement – Abolishing role 

During a restructure, the employer disestablished the role of senior case manager. The current senior case managers retained their current terms and conditions, but their job title was changed to case manager. The union contended that this amounted to a unilateral variation to the collective agreement. The collective agreement provided the employer with a right to manage and carry out organisational change. The Employment Court held that the employer was entitled to make the change without the union’s agreement. The union appealed. 

The Court of Appeal held that a clause requiring changes to collective agreement to be negotiated did not apply. This was because the collective agreement did not contain any references to senior case manager or case manager (para 31-32). Career progression between case managers and senior case mangers was not automatic and there was not entitlement to be promoted. The case managers had simply lost an opportunity to apply for a particular position (para 35)

The appeal was dismissed. 

Link to case [PDF 230 KB] (external link)  

Pitman v Advanced Personnel Services Ltd [2018] NZEmpC 74 

Employment Court – Stay of Execution – Jurisdiction when Employment Relations Authority determination certified by District Court 

The Authority found the employee breached his employment agreement and ordered him to pay damages, indemnity costs and disbursements to the employer. The employee filed a challenge in the Employment Court disputing the amount he was ordered to pay. The employer took steps to enforce the determination by having it certified as a judgement of the District Court. 

This case concerned the employee’s application for a stay of execution of the determination. A preliminary issue was whether the District Court had jurisdiction because of the certified judgment. The Employment Court held that the determination had not been transformed into a District Court judgment and it still had jurisdiction over the stay application (para 29-32). 

To determine the stay application, the Employment Court considered the factors in Assured Financial Peace Ltd v Pais [2010] NZEmpC 50 (para 33-54). The Court dismissed the application. 

Link to case [PDF 290 KB] (external link)  

Kaikorai Service Centre Ltd v First Union Inc [2018] NZEmpC 83 

Employment Court – Disclosure of evidence – Whether legal privilege applies to lay advocates 

The parties were engaged in collective bargaining. The employer refused to bargain about wages and the union initiated proceedings against the employer for a breach of good faith. During proceedings, the union served notices requiring disclosure of all documents relating to or dealing with the bargaining. The employer objected to disclosure on two grounds. First, it asserted that it should not have to disclose its bargaining strategy. Second, the employer claimed that its communications with its employment advocate were subject to legal professional privilege. The employment advocate was not a lawyer.

The Employment Court held that some protection should be afforded to documents that might disclose the employer’s bargaining strategy. The Court ordered the employer was excused from disclosing documents which directly or indirectly described its bargaining strategy (para 46). 

However, the Court held that the experience and role played by employment advocates does not automatically create the type of confidence which would excuse the disclosure of relevant documents. There needs to be something particular about the relationship which would excuse the employer from giving evidence (para 44). Parliament did not intend to create blanket privilege for communications with lay advocates (para 46). 

Link to case [PDF 900 KB] (external link)  

GSTech Ltd v Labour Inspector of the Ministry of Business, Innovation and Employment [2018] NZEmpC 84

Employment Court – Jurisdiction – What type of claims can Labour Inspector bring on behalf of employee 

The Labour Inspector brought a claim against the plaintiff company and its director on the basis that an employee had not been paid minimum wage. The Employment Relations Authority dismissed all of the Labour Inspectors claims. However, it did find that the employee was owed wages and holiday arrears for work undertaken for another company, Connecting Ltd, during his time with the employer. 

The plaintiff argued that the Employment Relations Authority had no jurisdiction to address the work the employee undertook for Connecting Ltd. The Employment Court held that the fact the claim was brought in relation to minimum wage entitlements did not prevent a parallel recovery of wages or breach of employment agreement claim. 

However, the only person entitled to bring such claims was the employee (para 13). The Authority could not unilaterally investigate and determine the Connecting Ltd wage and holiday pay arrears issue (paras 14-20). The Court did not that if the claims related to a minimum entitlement breach, then the Authority may have had jurisdiction, although this point was not raised on the facts (para 18).

The challenge succeeded and the Court set aside the part of the Authority’s determination concerning the Connecting Ltd arrears.  

Link to case [PDF 285 KB] (external link)

Page last revised: 17 October 2018

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