Cases of interest: June 2018

A summary of interesting or topical employment cases.

Wendco (NZ) Ltd v Unite Inc [2018] NZEmpC 67

Employment Court – Whether to grant interim injunction restraining union from picketing on employer’s property – Section 99 of the Employment Relations Act 2000

At issue was whether an interim order should be issued restraining the union from picketing or threatening to picket on the employer’s property.

The Court considered it was arguable that s 99(3) of the ERA 2000 did not apply to tort actions involving picketing, even if related to a strike or lockout (see para 51). Accordingly, the Court was satisfied that jurisdiction was established on an arguable basis (see para 53). It was reasonable for the employer to consider itself under a threat of picketing (see para 62). There was evidence that people had stood in the drive-through at the restaurant and were on the employer’s property (see para 66-68). The Court concluded the employer had an arguable case for interim relief on the basis of the tort of trespass (see para 71).

There were significant health and safety issues regarding the picketing around drive-through and car park areas (see para 72). An unspecified incident had required the police to attend (see para 74). There was a risk of altercation with customers being delayed by picketers (see para 78). A health and safety incident would never be compensated adequately with damages, particularly considering the statutory bar for seeking damages under the Accident Compensation Act 2001 (see para 79). The Court held there was not an alternative satisfactory remedy.

The union’s right to free speech and peaceful assembly could be exercised beyond the employer’s property (see para 81). Consequently, the balance of convenience strongly favoured the granting of interim relief (see para 82). Relatively short notice of strikes had been given and the pickets had been difficult to manage. The employer had specifically requested that the picketing did not take place on its private property.  The union did not provide any undertakings or assurances regarding future pickets (see para 85). The Court held overall justice favoured the employer (see para 86).

An interim injunction was granted preventing the union from picketing on the employer’s property. Where there was a lack of clarity as to the boundary of its property, the employer was to provide an accurate description of its properties (see para 89).   

The Court was careful to note that the finding made for this interlocutory application should not be regarded as creating a precedent of general application (see para 76).

Link to case [PDF 322 KB] (external link)

Labour Inspector v Sampan Restaurants Ltd [2018] NZEmpC 69

Employment Court – Appropriation of penalty for breach of employment standards between employer and any person involved in breach – Section 75 of the Holidays Act 2003

The Court was required to consider how the Authority should exercise its discretion when assigning liability for a breach of employment standards between an employer and a person involved in the same breach.

The Court noted that the respective liability of the employer and the person involved in the breach does not arise from the same actions (see para 17). The employer is liable for the breach of the employment standard itself. The actions for which the person involved becomes liable to a penalty, as set out in s 142W(1), are collateral to the breach. This would imply that the imposition of a penalty needs to be assessed independently against each to reflect the differentiation in their actions (see para 21)

The Court assessed the position in comparison with penalties or fines imposed under other legislation. Ultimately, the Court held that simply dividing what is regarded as an appropriate penalty for the breach between the employer and individual is not the correct approach (see para 45). Deterrence is a major factor in imposing penalties for a breach of employment standards (see para 46). The Authority must assess the respective liabilities of the employer and the person involved by reference to their own separate level of culpability (see para 48). Nevertheless, consideration may be given to the liability of the other. Penalties should not be imposed in a formulaic way. Instead, the Authority is to exercise its discretion having regard to proportionality, fairness and justice (see para 48).

Link to case [PDF 343 KB] (external link)

AssureQuality Ltd v New Zealand Public Service Association Inc [2018] NZEmpC 70

Employment Court – Interpretation of collective agreement – Whether all work performed on weekend to be paid at time and a half or just non-normal shifts

At issue was whether the phrase “All work by an employee on Saturdays and Sundays” in the collective agreement was to be given its plain meaning or interpreted to exclude work which begins on a Friday and ends in the early hours of Saturday.

The Court held that the use of the word “all” made it clear that any work performed on a Saturday or Sunday by an employee at a Monday-to-Friday-plant is to receive the higher remuneration rate. It was incorrect to limit remuneration only to the start of the roster period (see para 14). Instead, pay is to be calculated with reference to what day each part of the rostered hours falls into (see para 15).

The Court rejected the influence of background material that raised the possibility that the higher pay rate was intended to only apply to non-normal working hours (see para 21). Furthermore, the Court rejected an argument that the union was estopped from asserting a different interpretation of the contract as a result of the union’s silence (see para 34).

Link to case [PDF 314 KB] (external link)

Page last revised: 09 August 2018

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