Cases of interest: March 2016

A summary of interesting or topical employment cases.

Roy v Board of Trustees of Tamaki College [2016] NZEmpC 20

Employment court – Religious freedom and atheism

The employee, an atheistic secondary school teacher, refused to participate in school powhiris and assemblies on the ground that they contained religious elements. This resulted in tension between him and the school. After resigning, the teacher claimed constructive dismissal. The Employment Court held that the teacher had entered into a legitimate settlement agreement with the school when resigning and that he had not been dismissed unjustifiably.  However, the judgment offered interesting obiter comments on the requirements to participate in religious ceremonies in state schools. The Court noted that, although schools are encouraged to reflect the communities from which their pupils came, this is subject to universal standards including human rights: para [219]. The Court noted that freedom of religion includes a freedom not to practice any religion: para [211]. The Court observed that the teacher’s absence from powhiris and selective absences from aspects of assemblies would not have unreasonably disrupted the school’s activities: para [239]. The school was not justified in requiring the teacher to seek separate permission to be absent from each assembly: para [240].

Roy v Board of Trustees of Tamaki College [2016] NZEmpC 20 (external link)

Bashir v Ladbrook Law Ltd [2016] NZERA Auckland 73

Employment Relations Authority – Racial harassment – Making a connection between employee’s ability with English language and employee’s ethnicity

The employee, a law clerk, claimed that he was racially harassed by the director of the respondent law firm. The director had drawn a link between the employer’s bilingualism and a perceived lack of proficiency in English. The Employment Relations Authority found that there was no evidential foundation for these comments: paras [30]. The comments ignored the fact that the employee had attained a high level of academic literacy and that any grammatical errors were limited and could be attributed to inattention and inexperience: [33] and [34]. The legal test for racial harassment was met: para [37].

Bashir v Ladbrook Law Ltd [2016] NZERA Auckland 73 (external link)

Crichton v TD Drilling 2014 Ltd and Anor [2016] NZERA Wellington 28

Employment Relations Authority – Duty to provide a safe workplace – Employee allegations against colleagues

The employee reported to his manager that two employees were potentially taking drugs during work hours. It was disputed whether it was agreed that the employee’s complaint was to remain confidential. At a meeting, the manager advised all staff that the employee was the source of the allegation. The employee’s fear of retaliatory action was heightened by the fact that a number of his colleagues had a history of violence and imprisonment. The employee resigned and claimed that he had been constructively dismissed. The Employment Relations Authority found that the employer had failed to provide the employee with a safe workplace by placing him in a potentially unsafe situation and then refusing to rectify the situation: para [41]. The employee was constructively dismissed.

Crichton v TD Drilling 2014 Ltd and Anor [2016] NZERA Wellington 28 (external link)

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