Cases of interest: March 2017

A summary of interesting or topical employment cases.

Lumsden v Skycity Management Ltd [2017] NZEmpC 30

Employment Court – Interaction between ss 238 and 149

The Employment Court was required to consider whether a settlement agreement signed by a mediator under s 149 that purported to prevent the employee from pursuing a personal grievance breached s 238 of the Employment Relations Act 2000.

The Employment Court held that s 149 had to be read alongside other provisions of the Act, particularly Part 9, which deals with personal grievances (para 19). Section 149 links back to Part 9, thereby providing for the ability of parties to enter into settlement agreements regarding personal grievances. Section 149 also provides safeguards by requiring mediators to explain the impact of making such an agreement. It was not appropriate to make an exception to s 149 as argued for by the plaintiff. The Court concluded that parties are able to enter into settlement agreements under s 149 that restrict an employee’s right to pursue a personal grievance (para 21).

However, the Court reiterated earlier comments that s 149 may not be a blanket exception, as shown by the specific exclusion of some causes of action but not others. Such issues were not necessary to be decided in this case (para 22).

Link to case (external link)


Domingo v Suon [2017] NZEmpC 23

Employment Court – Fine for failure to comply with Authority determination

The Employment Court found it appropriate to impose a fine for the defendant’s failure to comply with the Employment Relations Authority’s substantive determination in relation to the plaintiff, and the follow-up compliance order. In doing so, the Court made it clear that plaintiffs do not have to seek enforcement in the District Court before seeking a sanction for failure to comply from the Employment Court (para 20). The Court held that an $11,000 fine was appropriate in the circumstances.

Link to case (external link)


Sanderson v South Canterbury District Health Board [2017] NZERA Christchurch 37

Employment Relations Authority – Whether requirement to be on call “work” for purposes of Minimum Wage Act 1983

The applicants were required to report to work within 10 minutes if required while on call. Any employees who did not live within a 10 minute trip could use accommodation provided on site or find alternative accommodation. They were not required to stay on site while on call. The applicants claimed that they were “working” while on call due to the requirement to report within 10 minutes and should be paid minimum wage.

The Employment Relations Authority applied the three factors from Idea Services Ltd v Dixon [2011] NZCA 14. It found that being required to report within 10 minutes placed “substantial and significant” constraints on the applicant’s freedom and that the nature and extent of the responsibilities placed on the applicants to be ready to report for work within 10 minutes were significant. The respondent benefitted from the 10 minute report time because it could provide a 24/7 service without having to roster staff on all the time. The applicants were working for purposes of the Minimum Wage Act 1983 while on call (para 98).

Link to case (external link)


AFFCO New Zealand Ltd v New Zealand Meat Workers and Related Trades Union Inc [2017] NZSC 30

Supreme Court - Leave to appeal granted

The Supreme Court granted leave to appeal on the question of whether the Court of Appeal was correct to conclude that the appellant had breached s 82 of the Employment Relations Act 2000 by requiring employees to enter into new individual employment agreements before commencing work for the new season.

Link to case (external link)

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