Cases of interest: September 2020

A summary of interesting or topical employment cases.

Diamond Laser Medispa Taupo Ltd v Human Rights Review Tribunal [2020] NZCA 437

Court of Appeal – Jurisdiction – Discrimination on basis of pregnancy – Human Rights Review Tribunal – Employment Relations Authority – Parental Leave and Employment Protection Act 1987, s 56 – Employment Relations Act 2000, s 161

The employee informed the employer that she was pregnant, 10 months after her employment began. She alleged that after that, her employment conditions worsened and she was forced to resign. The employer is facing a claim of discrimination in the Human Rights Review Tribunal (HRRT). It applied for an order striking out the claim for want of jurisdiction. The HRRT dismissed the application, and the employer sought judicial review in the High Court. The High Court dismissed the application, finding that the HRRT did have jurisdiction. The employer appealed the judicial review decision in the Court of Appeal.

At issue was whether the employee could only bring a cause of action as a parental leave complaint under the Parental Leave and Employment Protection Act 1987 (external link) (PLEPA), and could therefore only bring a cause of action in the Employment Relations Authority (Authority) (see para 2).

The employer argued that the employee’s allegations brought the issue within the definition of a parental leave complaint under s 56(1) (external link) of PLEPA, and therefore she was obliged to follow the statutory procedures for settlement of parental leave complaints in PLEPA (see para 12). The employer also said that s 161 (external link) of the Employment Relations Act 2000 (Act) gives the Authority exclusive jurisdiction to make determinations about employment relationship problems generally, and because the employee’s complaint concerns a problem relating to or arising out of her employment relationship the Authority has exclusive jurisdiction to hear her complaint (see para 13).

The Court held that the HRRT’s jurisdiction is not ousted by PLEPA or the Act. The employee had an election as to which cause of action to pursue, which would determine whether the Authority or the HRRT has jurisdiction (see para 41). However the PLEPA would be relevant if the employer could justify its alleged discriminatory actions by showing that they were in accordance with PLEPA (see para 42).

Diamond Laser Medispa Taupo Ltd v Human Rights Review Tribunal [2020] NZCA 437 [PDF 236KB] (external link)

Bay of Plenty District Health Board v CultureSafe New Zealand Ltd [2020] NZEmpC 149

Employment Court – Jurisdiction of the Employment Relations Authority to make directions to employee’s representative ­– Sub judice rule – Ex-parte interim orders

At issue were what powers Authority has in respect of a series of directions to the employee’s advocate (Mr Halse) not to contact senior personnel of the plaintiff (the DHB), and not to publish adverse comments about the DHB’s position in the matter. These directions were later extended to the entity under which Mr Halse operated (CultureSafe), and to the employee herself. The further issues were whether the directions made were valid or enforceable, what powers the Court has to enforce Authority directions and whether it could do so in this case (see para 6).

The Court said that the Authority “is left to get on with the processes which it has the statutory responsibility to undertake” (see para 56). However, it stressed that while the Authority is an investigative body that is not inhibited by strict procedural requirements, it does enjoy the status and protections of judicial proceedings, and an Authority Member must be considered a judicial officer under s 176(2) (external link) of the Act (see para 59).

The Court considered the Authority’s ability to issue directions, particularly whether they can be issued to bind a representative as well as a party (see para 69). The Court held that the Authority has the broad jurisdiction to issue direction for the purposes of ensuring the fair conduct of proceedings before it; and that it can issue such directions against a representative (see para 86). Specifically, the Court held that a representative must comply with procedural rules and directions issued by the Authority within its jurisdiction, whether or not those rules or directions refer to a party only or to a representative. This is a necessary conclusion of s 160(1)(f) (external link) because Parliament could not have intended the dysfunctional alternative of a representative being able to disobey rules or directions of the Authority (see para 79). In regard to non-publication orders, the Court held that cl 10(1) of sch 2 (external link) allows the Authority to order that certain details are “not to be published”, and it would be absurd if Parliament intended all persons except representatives to be bound by such an order (see para 85).

The Court held all but one direction issued by the Authority to be valid.

The first direction that Mr Halse not make contact with the DHB while it was represented by counsel was held to be a valid direction. It was ensuring the investigation would proceed fairly and without improper pressure on the DHB (see para 110). The second direction was held to be valid as was its warning to the possibility of a penalty under s 134A (external link) of the Act (see paras 121­­–122).

The third direction was an oral direction the Authority made in the presence of the parties that the matter should remain sub judice pending the Authority’s determination, and the parties were not to make any public comments about the matter (see paras 26 and 126). The Court held that this was not a non-publication order made under cl 10 of sch 2 (external link) of the Act (see para 128), but the Authority had jurisdiction to issue this direction, and to balance the right of free speech against fair trial considerations (see para 135).

The fourth direction was issued after the investigation meeting and before the determination was issued. The DHB had filed an ex parte application for penalties against CultureSafe, Mr Halse and the employee. The DHB therefore requested substantive relief against two non-parties (see para 146). The Authority directed that a proceeding should be filed citing both Mr Halse and CultureSafe as respondents (see para 147). However the Authority made interim orders directing Mr Halse and the employee to comply with previous directions, and to take down various Facebook posts (see para 36). The Court found that the directions in the interim orders should not have been made, and the DHB should have issued fresh proceedings against the employee, Mr Halse and CultureSafe (see para 152).

Finally, the DHB clarified that it was not applying to the Court for enforcement of the Authority’s directions but was seeking penalties under s 134A (external link) and orders under s 196 (external link) of the Act (in its form prior to amendment by the Contempt of Court Act 2019 (external link) ) (see para 161). The Court confirmed that an application for a penalty under s 134A that has been removed to the Court under s 178 (external link) of the Act is within the Court’s jurisdiction; and that no such jurisdictional issues arose in respect of s 196 of the Act (see paras 167–168).

Bay of Plenty District Health Board v CultureSafe New Zealand Ltd [2020] NZEmpC 149 [PDF 438KB] (external link)

Ceres New Zealand LLC v DJK [2020] NZEmpC 153

Employment Court – Raising personal grievance – 90-day timeframe – Employment Relations Act 2000, s 114 – When does employment end on notice

At issue was whether the employee raised a personal grievance for unjustified dismissal within the 90-day timeframe contained in s 114 (external link) of the Act.

The employer wrote a letter to the employee on 16 January 2019 giving formal notice of termination for redundancy and telling her that the employer would be making a payment to her in lieu of notice (see para 8).

The Authority determined that the 90-day timeframe ran from the date on which the employee realised that her employment had been terminated, because it found the employee was confused for a period of time after receiving a letter advising that her employment had been terminated (see para 3). However, although the employee was not required to work out her notice period, this differed from being summarily dismissed (see para 13).

The Court held that the 90-day period ran from 28 January 2019, the date on which her notice period came to an end and not 16 January 2019, the date she received formal notice of termination (see para 15). The Court referred to two cases which found that the start of the 90-day timeframe ran from the end of a notice period. Poverty Bay Electric Power Board v Atkinson [1992] 3 ERNZ 413 (EmpC) found that because it was the employee who chose to receive payment in lieu of notice, it implied that the employer was willing to employ him up to the end of the notice period and so dismissal did not occur until that date (see para 10). Gibson v GFW Agri-Products Ltd [1994] 2 ERNZ 309 (EmpC) observed that employment does not end when notice is given, only when it has run its course unless it is a summary dismissal (see para 11). The Court of Appeal in GFW Agri-Products Ltd v Gibson [1995] 2 ERNZ 323 (CA) agreed that where dismissal is on notice (not a summary dismissal) the 90-day timeframe starts at the end of the notice period (see para 12).

The Court concluded that the employee did raise her personal grievance within the 90-day timeframe, coming to the same conclusion as the Authority but with different reasoning (see paras 17 and 18).

Ceres New Zealand LLC v DJK [2020] NZEmpC 153 [PDF 214KB] (external link)  

Marshall v W Gartshore Ltd [2020] NZERA 376

Employment Relations Authority – Witness immunity from civil action – Health and Safety at Work Act 2015, s 168(1)(f) – Record of settlement – Non-disparagement

At issue was whether s 168(1)(f) (external link) of the Health and Safety at Work Act 2015 (external link) (HSWA) or the witness immunity rule overrode a non-disparagement clause in a record of settlement; and whether a compliance order and penalty were appropriate.

The record of settlement between the employee and the employer contained a non-disparagement clause. There had been a workplace accident prior to the settlement agreement being signed. WorkSafe New Zealand (WorkSafe) was undertaking an investigation into the workplace accident. During an interview with a WorkSafe inspector, the employer made disparaging comments about the employee. The employee sought a compliance order and penalties. The employer said that they were legally required to answer questions under s 168(1)(f) (external link) of HSWA and that this overrode the record of settlement (see paras 6–7).

The Authority determined that the comments made by the employer were clearly disparaging and a breach of the record of settlement, particularly because the employer implied the employee’s employment ended for a reason other than redundancy as was agreed in the record of settlement (see paras 29 and 33). While the employer was required to answer the WorkSafe inspector’s questions, and explain the shortcomings in the employer’s health and safety systems, the Authority determined that the employer went further than was necessary (see para 32).

Nevertheless, the Authority determined that the rule of witness immunity from civil action was absolute, and applied to the disparaging comments; because at the time the comments were made, judicial proceedings (a prosecution under HSWA) were in contemplation. Although the employer went further than necessary, the Authority declined to order compliance or penalties (see para 45).

Marshall v W Gartshore Ltd [2020] NZERA 376 [PDF 235KB] (external link)

Page last revised: 09 October 2020

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