Cases of interest: October 2017

A summary of interesting or topical employment cases.

Broadspectrum (NZ) Ltd v Nathan [2017] NZCA 434 

Court of Appeal – Refusal to grant stay of proceedings or stay of execution 

The Court of Appeal refused to grant a stay of proceedings or a stay of execution in relation to the Employment Court’s findings that the employer was in contempt of that Court’s compliance orders. 

The Court held that a party to litigation must raise every point that is relevant to the issues before the Court (see para 49). It can amount to an abuse of process if a party to litigation does not raise an aspect of its case in litigation, but seeks to introduce it as relevant to the same issue in a later proceeding (see para 50). 

The employee’s competency was at issue in the initial proceeding before the Employment Relations Authority. The employer effectively withdrew its concerns regarding the issue when it proposed the employee be reinstated during the initial proceedings (see para 47). The Court held that any ongoing concerns as to deficiencies in the employee’s knowledge could be addressed by on-the-job training (see para 43). Furthermore, the Court did not consider that a refusal of a stay would render the results of a successful appeal futile (see para 37).

Link to case [PDF 330KB] (external link)

Affco NZ Ltd v NZMWRTU Inc [2017] NZCA 453 

Court of Appeal – Leave to appeal granted 

The Court of Appeal granted leave to appeal on the question of whether any of the entitlements of union members arising from AFFCO’s unlawful lockout were entitlements to wages under the Wages Protection Act 1983 (external link) (see para 13). 

Link to case [PDF 95KB] (external link)

Corrections Assoc of NZ Inc v Chief Executive of the Department of Corrections [2017] NZCA 477 

Court of Appeal – Leave to appeal granted 

The Court of Appeal granted leave to appeal on the question of whether the Employment Court erred in holding that the Chief Executive of the Department of Corrections’ removal of a work category from the collective agreement did not amount to a variation itself requiring further agreement (see para 5).

Link to case [PDF 298KB] (external link)

ALA v ITE [2017] NZEmpC 130

Employment Court – Sentenced to 21 days imprisonment for breaches of Court orders 

The employee breached the Court’s compliance orders on multiple occasions by publishing confidential information and declined to remedy the breaches (see paras 4, 28, 29).

Two previous financial orders had not acted as a deterrent (see para 36). Consequently, the imposition of a fine was not considered an adequate response to the deliberate and continued breaches (see para 36). Instead, the employee was sentenced to a 21 day term of imprisonment under s 37(4) (external link) of the Corrections Act 2004 (see para 55). 

Link to case [PDF 120KB] (external link)

Judea Tavern Tld v Jesson [2017] NZEmpC 120 

Employment Court – The role of GST when calculating an award of costs 

The employee, being the successful party, sought an award of costs plus GST.

The Court considered that costs awards do not engage the Goods and Services Tax Act 1989 (see para 5). There is no GST component for which the successful party must account to the Commissioner of Inland Revenue and, conversely, no GST component which the losing party can claim back (see para 5). Instead, GST has a potential role in establishing the quantum of costs to be awarded (see para 7). The GST registration status of the successful party is a material factor in determining whether or not an uplift in the costs to be awarded is appropriate (see para 12).

In this case, the employee was entitled to costs of $7,500 plus an uplift of $1,125 in recognition that she was not GST registered (see para 12). The same approach was adopted when considering entitlement to costs arising from earlier proceedings before the Employment Relations Authority (see para 20). 

Link to case [PDF 550KB] (external link)

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