Cases of interest: February 2023

Bowen v Bank of New Zealand [2023] NZEmpC 29

Employment Court – Jurisdiction – Challenge to the procedure of the Employment Relations Authority – Direction to exclude privileged material from statement of evidence

In an earlier proceeding the Employment Relations Authority (the Authority) directed the employee to remove privileged material from their statement of evidence. The employee sought to challenge that direction in the Employment Court (the Court) on the basis that the material was not privileged.

At issue was whether the Court had jurisdiction to hear a challenge to the Authority’s direction.

The Court found it had no jurisdiction to hear the challenge as it concerned the Authority’s procedure and so was barred under the Employment Relations Act 2000 (the Act), section 179(5)(external link) (see paras 26, 27). In coming to that decision, the Court took into account that:

• The “general policy of the Act is against supervision being exercised in relation to procedural rulings” (see para 16).
• There was no irreversible or substantive effect on the employee’s rights as a result of not allowing her to challenge the Authority’s direction:
  • She could still revisit what evidence was admissible in a de novo challenge in the Court (see para 18).
  • She could still challenge the Authority’s substantive determination (see paras 24, 25).

Bowen v Bank of New Zealand [2023] NZEmpC 29 [PDF, 200KB](external link)

Bird v Vice-Chancellor of the University of Waikato [2023] NZEmpC 16

Employment Court – Jurisdiction – Challenge to the procedure of the Employment Relations Authority – Direction to remove evidence from mediation from statement of problem

As in Bowen v Bank of New Zealand above, at issue was whether the Court could hear a challenge to procedural directions of the Authority. 

The employee and employer took part in mediation to try to resolve their employment relationship problem. When the mediation was unsuccessful, the employee took a personal grievance claim to the Authority. The employee included material from the mediation in their statement of problem. The Authority ordered the employee to remove the mediation material from the statement. 

The employee sought to challenge the Authority’s order in the Court. The employee claimed that striking out the material from the mediation amounted to a breach of his natural justice. 

As in Bowen v Bank of New Zealand, the Court held it did not have jurisdiction to hear the challenge as it related to the Authority’s procedure, and so was barred under section 179(5)(external link) of the Act (see paras 25, 26). Again, the Court took into account that its decision not to hear the challenge would not affect the employee’s substantive rights, as (see paras 23, 24): 

• The employee could still challenge the Authority’s substantive determination in the Court.
• The Court could consider matters of pleadings and evidence afresh in a challenge. 

Bird v Vice-Chancellor of the University of Waikato [2023] NZEmpC 16 [PDF, 190KB](external link)

Henry v South Waikato Achievement Trust [2023] NZEmpC 20

Employment Court – De novo challenge – Personal grievance – Unjustified dismissal – Serious misconduct – Procedural and substantive fairness

At issue was whether the employer unjustifiably dismissed the employee for serious misconduct.

The employee was employed as second-in-charge in a community residential facility for disabled persons. The employee filed a complaint to her manager about alleged abuse of a client by a support worker. The employee had not witnessed the alleged abuse, but relied on statements from another support worker; information in the complaint was from around six months earlier, but the support worker had not reported it at the time.

The employer carried out an investigation and decided there was not sufficient evidence to support the complaint. The employer was concerned:

1. that the employee had an improper motive in bringing the complaint (as she had complained about the same support worker previously; the employer considered the employee’s actions could be retaliatory)
2. that the employee had not reported the incident earlier, contrary to the complaints process.

Based on its concerns, the employer started an investigation into the employee. The employer later suspended the employee and then dismissed her for serious misconduct.

The employee took a claim to the Authority for unjustified dismissal and for unjustified disadvantage in relation to the suspension. The employee was unsuccessful in the Authority.

The employee challenged the Authority’s determination in the Court. The employee sought remedies for a personal grievance and reinstatement.

The Court found the suspension was unjustified because the employer “did not adequately disclose to [the employee] the reasons for it and there was no proper basis for reaching that decision” (see para 59). The Court decided that the dismissal was also unjustified (see paras 65 and 105). The Court took into account that:

• The Chief Executive, to whom the employer directly reported, also did not follow the employer’s complaint process, making his expectations about complying with it “potentially confusing” (see paras 68 to 71).
• The employer treated the employee differently from how it treated the support worker who also did not report the alleged assault at the time; the employer did not take any action against the support worker (see paras 83 and 84).
• The employer “drew a long bow” in deciding the employee’s complaint was retaliatory (see paras 85 to 89).
• The process of interviewing other staff to gather evidence was inadequate (see paras 90 to 96):
  • The employer interviewed only 19 staff out of 50 or 60.
  • The employer did not explain how interviewees were selected; whether it was because they were thought to have knowledge of events, were volunteers, or were chosen in another way.
  • The questions the employer asked and the resulting answers were too general; they were about the employee’s qualities as a manager and her working relationships in general; making it hard for the employee to respond to allegations.
  • The employer used “broad and general answers lacking specific information” to support a “specific allegation of retribution”.
  • The conclusion the employer reached “was not objectively something that could be derived from the interviews and was not fair”.
• The employer had considered it serious misconduct that the employee had interviewed the client herself to get information about the alleged assault, but did not explain why this was inappropriate (see paras 101–104).

The Court awarded the employee the following monetary remedies without any reduction for contribution (at 134): 

• lost remuneration of $52,636.72
• special damages of $8,060.48
• compensation under section 123(1)(c)(external link) of the Act of $35,000. 

The Court declined to reinstate the employee. The Court held that reinstatement was not practicable or reasonable because the employee would have had to work with people she had accused of “significant professional and personal lapse[s]” (see para 111). 

Henry v South Waikato Achievement Trust [2023] NZEmpC 20 [PDF, 380KB](external link) 

Larsen v Coldrite Refrigeration & Air Conditioning Ltd [2023] NZERA 56

Employment Relations Authority – COVID-19 – Vaccination – Unjustified dismissal

At issue was whether the employee was unjustifiably dismissed for redundancy after he refused to get vaccinated.

The employer operated a refrigeration and air conditioning business. The employer had a subcontract to carry out air conditioning work for the Ministry of Education in the summer school holidays. Under orders made under the COVID-19 Public Health Response Act 2020(external link), for a time only vaccinated workers were permitted in a school. This restricted which employees the employer could send to work in the schools.

The employer informed employees through various emails that unvaccinated workers would be harder and harder to place. The employer urged workers to get vaccinated. The employee claimed he did not see these emails. There was evidence the issues were raised at staff meetings as well. Ultimately, only the employee and one other staff member remained unvaccinated.

After the Christmas shutdown, the employer decided it did not have enough work for unvaccinated employees. The employer emailed the employee suggesting that redundancy may result and called him to a preliminary meeting about the matter. The employee said he did not get the email.

The employer called the employee into the meeting after work, as discussed in the email. The employer asked the employee why he did not have a support person as the email suggested.

The employee took from the meeting that he was being dismissed with two weeks’ notice for not getting vaccinated. The employer disputed that the employee was dismissed in the meeting, claiming the employee stormed out before discussions concluded.

After leaving the meeting, the employee texted all staff saying he had been dismissed with two weeks’ notice. The employer then emailed the employee disputing that he had been sacked in the meeting. However, in the same email, the employer said that the employee was now being dismissed for redundancy with two weeks’ notice because the employer did not have enough work for unvaccinated staff. The employee said he did not get that email either.

The employee claimed he was unjustifiably dismissed.

The Authority determined that the employee’s dismissal was substantively unjustified, because there was enough work to do and the employee’s position was not surplus (see para 36).

The Authority determined the redundancy was also not procedurally justified because the employee was not consulted before the redundancy (see para 37). The Authority considered that the meeting that resulted in a “standoff” could not amount to consultation (see para 38).

The Authority found the text the employee sent to all staff was also not sufficient misconduct to justify dismissal (see para 39). The Authority further found that the employer did not comply with a government-mandated four weeks’ notice for unvaccinated employees.

The Authority ordered the employer to pay $14,774.40 in lost wages and $10,000 compensation for humiliation, loss of dignity and injury to feelings (see para 47).

Larsen v Coldrite Refrigeration & Air Conditioning Ltd [2023] NZERA 56(external link)

Zhuang v Drapac Ltd [2023] NZERA 57

Employment Relations Authority – Unlawful deductions – Unpaid breaks – “Park and ride” shuttle bus driver

At issue was whether the employer was entitled to deduct 7.5 minutes off every hour the employee worked as an unpaid “health and safety” break.

The employee worked as a “park and ride” shuttle bus driver. The employer claimed the employee “requested unpaid break time” of 7.5 minutes per hour of her work, in order to ensure the health and safety of the employee and her passengers while she was driving (see paras 2, 3). The employer paid her wages on that basis. The employer sought arrears from the employer to compensate her for the unpaid breaks.

The Authority found the employer was not entitled to deduct 7.5 minutes per hour from the employee’s wages, even with her agreement (see paras 12, 15). The Authority determined the unpaid break was not a break of the type authorised by Part 6D(external link) of the Act, which provides for paid rest breaks and unpaid meal breaks (see para 13). The Authority stated that if the employee did need breaks for health and safety reasons, these breaks must be paid (see para 14).

The Authority ordered the employer to pay the arrears resulting from the unpaid breaks with interest (see paras 16 to 19).

Zhuang v Drapac Ltd [2023] NZERA 57(external link)