Cases of interest: March 2019

A summary of interesting or topical employment cases.

Talbot Agriculture Limited v Wate [2019] NZEmpC 31

Employment court – Unjustified dismissal – Trial Period – Whether employment relationship existed before trial period was signed

The employee undertook a successful work assessment and was offered a job. A signed employment agreement contained a 90-day trial provision but specified that commencement was delayed until the employee obtained the required work visa. In the meantime the employee attended the employer’s workshop daily. The employer described this as a “familiarisation” process whereby the employee shadowed one of the directors or other employees. The employer did not pay the employee during this period. However, three cash payments were made by the directors to the employee during this time.

The issue was not the lawfulness of the work performed prior to the visa being granted but whether the employee worked as an employee during this time thereby preventing the employer from subsequently relying on a trial period to dismiss the employee.

The Employment Court rejected the employer’s argument that at the time of the work assessment the employee was a volunteer. Simply labelling tasks as an “assessment” does not mean that the person is a volunteer and not an employee (at [35]).

The Court held that the fact the employee was looking for paid work, the length of time he was present on the employer’s premises, that he undertook tasks for the employer and his regular pattern of attendance all pointed towards an employment relationship. The evidence that the employee was merely “tagging along” over approximately five weeks was unconvincing.  Furthermore, a letter from the employer’s solicitors made it clear that a “wash up” was intended once the visa was granted (at [37]).

The Court held that the “familiarisation” period was a separate period of employment. Consequently, an employment relationship existed before the commencement of employment contemplated by the written agreement. The employer could not rely on the trial provision under s 67A Employment Relations Act 2000 (external link) as the employee had been previously employed per s 67A(3) (at [46]).

Link to case [PDF 495 KB] (external link)

Wendoco (NZ) Limited v Unite Inc [2019] NZEmpC 29

Employment Court – Costs where proceedings discontinued – Application of High Court Rules

A substantive hearing never eventuated because the parties resolved the difficulties they were having reaching a new collective employment agreement through facilitation. The plaintiff subsequently filed a notice of discontinuance. At issue was whether either party should be awarded costs on the discontinued proceedings.

The Employment Court noted that neither the Employment Relations Act 2000 nor the Employment Court Regulations 2000 provide a specific procedure for determining costs in the event of discontinuance. However, r 15.23 of the High Court Rules 2016 creates a presumption that the discontinuing party pays the costs of the other party up to the date of discontinuance unless the defendant otherwise agrees or the Court otherwise orders. While discretion remains under r 15.23, the onus is on the discontinuing plaintiff to persuade the Court to exercise the discretion in its favour (at [4]).

The presumption is not easily displaced (at [4]). However, there are circumstances where it will be just and equitable for the defendant not to receive an award of costs. One such situation will be where a change in circumstances may render the proceedings irrelevant or unnecessary (at [8]).

In the present case, both parties had agreed to a referral to facilitation. Discontinuance became an inevitable outcome of that process. The Court held that each party should bear their own costs (at [9]).

Link to case [PDF 220 KB] (external link)

Page last revised: 15 March 2019

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