Cases of interest: July 2022

A summary of interesting or topical employment cases.

New Zealand Post Primary Teachers’ Association v Board of Trustees for Rodney College [2022] NZEmpC 118

Employment Court – Interpretation of collective agreement 

At issue was the correct interpretation of the phrase “when the school is not open for instruction” in cl 5.4 of the Secondary Teachers' Collective Agreement 2019—2022 (“the 2019 STCA”). 

The union and school disputed the interpretation and application of cl 5.4 of the 2019 STCA. This clause provided that teachers should be reimbursed for any actual and reasonable costs incurred if teachers were required to attend school or elsewhere when the school was not open for instruction. The parties sought clarification from the Employment Court (“Court”) on the meaning of “when the school is not open for instruction”. 

The Court interpreted the phrase by considering: 

  • the history of the negotiations in creating the clause. The final iteration of the clause was the “product of significant negotiation and compromise” (see para 73).
  • the clause in the context of the agreement as a whole (see para 79).
  • the successive STCAs, the Education Act 1989 and other relevant legislation (see paras 76 – 98).

The Court concluded that the words “times when the school is not open for instruction” meant “weekends, public holidays, Easter Tuesday, vacations and times before 8.30 am and after 4.30 pm on days during the school term” (see para 143). The Court found (at [144]):

This meaning is consistent with the purpose of the clause itself, which was to enable the employer to require teachers to be at school or elsewhere for professional development or administrative purposes at times when they could not previously be required to be at the workplace. 

New Zealand Post Primary Teachers’ Association v Board of Trustees for Rodney College [2022] NZEmpC 118 [PDF, 520KB] (external link)

CSN v Royal District Nursing Service New Zealand Ltd [2022] NZEmpC 123

Employment Court – Vaccinations Order – Employee status – Care and support worker 

At issue was whether the plaintiff fell within the definition of “care and support worker” under the COVID-19 Public Health Response (Vaccinations) Order 2021 (external link) (Vaccinations Order). And if so, whether she continued to be an employee of the employer until the termination of the employer’s contract with the Accident Compensation Corporation (ACC), despite her ongoing non-compliance with the Vaccinations Order.  

The employee was employed by the employer to provide paid care for her disabled son, who lived with her at her own home. The plaintiff chose not to receive the COVID-19 vaccinations. Therefore, her employment was terminated by the employer when the Vaccinations Order came into effect. The employee sought a declaration from the Court that she remained an employee when she continued to care for her son notwithstanding her refusal of the COVID-19 vaccinations. 

The Court considered the meaning of care and support worker as defined in the Vaccinations Order (at cl 4 (external link) ):

care and support worker means a person employed or engaged to provide care and support services within a home or place of residence. 

The Court considered that a broad interpretation would include a caregiver’s own home, but a narrow interpretation would not. The Court found that Parliament could not have intended a broad interpretation because it: 

  1. would not be consistent with the purposes of the Vaccinations order, nor with the broader statements of purpose of the Covid-19 Act, which was to limit the spread of COVID-19 (see para 83).
  2. would result in an “absurd” outcome, which could not have been intended by Parliament since no express reference was made to a caregiver’s own residence (see para 84).
  3. would contravene New Zealand’s international obligations under the Convention on the Rights of Persons with Disabilities (see para 85).

The Court held that the employee was therefore not a care and support worker under the Vaccinations Order, as it did not cover carers working in their own homes (see para 87). 

The Court made a declaration that the employee was still working for the employer for the period between the implementation of the Vaccinations Order and ACC’s termination of the contract with the employer (see para 146). 

CSN v Royal District Nursing Service New Zealand Ltd [2022] NZEmpC 123 [PDF, 380KB] (external link)  

Teddy and Friends Ltd v Page [2022] NZEmpC 129

Employment Court – Raising personal grievance 

At issue was whether the employee raised personal grievances against the employer within the 90-day period required by s 114 (external link) of the Employment Relations Act 2000 (Act). 

The employee and his manager argued on three occasions. The employer’s lawyer wrote an email to the employee on 7 August 2020 stating that his behaviour was potentially serious misconduct which could result in immediate dismissal. The lawyer went on to say that as the employee had proposed an “exit plan” and indicated he did not want to return to his role, the employment relationship was no longer tenable. The lawyer wrote the employer therefore considered the employment terminated. The employee was reminded of his post-employment obligations. 

The employer asked the Court to find that the employee did not raise a personal grievance within 90 days. The employer said it did not receive the employee’s grievance until it was served with the statement of problem lodged in the Employment Relations Authority (“Authority”) on 10 November 2020. That would have been five days over the 90-day period. 

The Court looked at the correspondence between the parties in the days following the dismissal and decided the employee had done enough to raise a personal grievance. The Court found the communications made it clear the employee disputed both the allegations regarding his conduct, and that he had not wished to return to his role (see para 21). The employee had considered the employment relationship still existed and the parties needed to resolve their dispute (see para 24). The Court concluded the dismissal grievance was raised with “sufficient particularity as to inform the employer of his position and what it needed to do to put things right” (see para 30). There was insufficient evidence to find that another personal grievance for a disadvantage had been raised (see para 32). 

Teddy and Friends Ltd v Page [2022] NZEmpC 129 [PDF, 240KB] (external link)  

Farrand Orchards Ltd v Tane [2022] NZEmpC 131

Employment Court – Validity of 90-day trial 

At issue was whether the employer could rely on a 90-day trial contained in the employment agreement when dismissing the employee. 

The employee and employer discussed a trainee orchard manager role in a four-hour onsite interview. The parties disputed whether a 90-day trial was discussed during that interview. The parties shook hands on a verbal offer. The employer later provided the employee with an employment agreement containing both a probation period and a 90-day trial period. The employment agreement did not include many of the inclusions necessary under s 65 (external link) of the Act, such as the employee’s name, description of the work or the salary. The covering email said that the employment agreement was negotiable. 

The employee started work. The parties disagreed as to when a completed employment agreement was provided to the employee, but the Court found it was probably on the first day of his employment (see para 96). One week later the employee returned a signed contract to the employer. Within the first 90 days of his employment, the employer terminated the employment, purporting to rely on the 90-day trial under s 67B (external link) of the Act. 

The Court found the 90-day trial provision was invalid for the following reasons:

  • When the employee moved from Auckland to Kerikeri to take up the role, he was unaware a 90-day trial was a required term (see para 80).
  • There was insufficient evidence the employer had discussed a 90-day trial during the initial interview (see para 52).
  • The employer claimed the employee had promised to sign the employment agreement before starting work on his first day, but the Court found that inherently unlikely (see para 89).
  • The employment agreement was not executed prior to the commencement of employment which was fatal to the employer’s claim (see paras 97 and 101–102). 

The challenge was dismissed and the employer was ordered to pay the remedies ordered by the Authority (see paras 116 and 118). 

Farrand Orchards Ltd v Tane [2022] NZEmpC 131 [PDF, 340KB] (external link)  

CAE v Hexion (N.Z.) Ltd [2022] NZERA 325

Employment Relations Authority – Personal grievance – Unjustified dismissal - Interim reinstatement 

At issue was whether the Authority would reinstate the employee to his position on an interim basis pending the Authority’s substantive determination of the employee’s claim for unjustified dismissal.

The employee had a Ministry of Health exemption from wearing a face mask under the Vaccinations Order. His employment was terminated for refusing to comply with the employer’s requirement to wear a face mask at the workplace. The employee raised a personal grievance claim of unjustified dismissal against his employer. The employer claimed that it had undertaken a risk assessment and explored alternatives to masks but had found no other available options that could sufficiently address the health and safety risk. The employer noted that the employee had worn respirators at work on a regular basis without reported concerns and he was only required to wear a face mask in limited circumstances. The employee sought interim reinstatement from the Authority until his substantive claim for unjustified dismissal could be investigated and determined.

The Authority granted his application for interim reinstatement. The Authority found there was a seriously arguable case to be tried for the following reasons: 

  • It was arguable that there were accommodations that could have been made to mitigate risk and dismissal was premature (see para 69).
  • The employer had continued doubt about the employee’s inability to wear a mask, which impacted its decision making. It was possible those doubts also impacted on any assessment of accommodation that could reasonably have been made. Arguably there were some limits on the requirements of an employer for an employee to prove they have a disability (see para 74).
  • The employee wore a face shield in the workplace after the implementation of the rule. Arguably that face shield provided more limited protection but packaged with testing daily may have mitigated risk (see para 88).
  • The balance of convenience favoured the employee. The Authority considered the employee’s substantive claim for unjustified dismissal and permanent reinstatement to be strongly arguable. It had not been subjected to case law to date and it was not a straightforward matter (see para 106).
  • Overall justice favoured ordering the interim reinstatement of the employee on the condition that the employer might, at its discretion, comply with the order by reinstating him only to the payroll without requiring him to attend work. If the employee were required to attend work, he would be required to wear a face shield, take a daily rapid antigen test, observe strict handwashing standards, and report and stay away from work if he developed COVID-19 symptoms (see para 109). 

The Authority noted that this was the first case concerning mask exemptions. Mask wearing provided known public health benefits. Whether there were suitable alternatives in workplaces was one of many issues that would be addressed in the Authority’s substantive investigation (see para 111). 

CAE v Hexion (N.Z.) Limited [2022] NZERA 325 [PDF, 3MB] (external link)

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Page last revised: 18 August 2022

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