Cases of interest: June 2024

Crichton v Dig & Tip Earthworks Ltd [2024] NZEmpC 98

Employment Court – Breach of record of settlement – Compliance order – Director liability

At issue was whether, after the employer breached a record of settlement, the employee could:

1.  go behind the record of settlement to have his unpaid wages and holiday pay claims heard afresh
2. seek interest on the unpaid amounts
3. recover the unpaid amounts from the director personally.

The parties attended mediation. They agreed in a record of settlement that the employer would check and pay in full the employee’s unpaid hours claim and pay his owed holiday pay. The employer made agreed payments late and the employee claimed they were incomplete. The employee made an application to the Employment Relations Authority (Authority) claiming the employer had breached the record of settlement. The Authority ordered the employer to comply with the record of settlement and to pay a penalty of $6,000.

The employee challenged the Authority’s determination that it could not go behind the record of settlement to consider his claims afresh, order statutory interest on the sums paid belatedly or order the director of the company employer to pay any unpaid amounts. The employee claimed that the terms of the record of settlement “carved out” his minimum entitlements and the dispute regarding his remuneration existed outside the settlement (see paragraphs 24–25). The Court dismissed those claims, saying they would go against the finality the Employment Relations Act 2000 (Act) envisaged for records of settlement (see paragraph 26). It held the record of settlement confirmed rather than compromised the employee’s minimum entitlements (see paragraph 27).

The Court calculated the outstanding wages and holiday pay due under the record of settlement and ordered the employer to pay interest on them (see paragraph 46). It found the director was not personally liable for the sums because they were due under a record of settlement (see paragraph 39).

Crichton v Dig & Tip Earthworks Ltd [2024] NZEmpC 98(external link)

Auckland One Rail Ltd v Rail and Maritime Transport Union [2024] NZEmpC 101

Employment Court – Strike notice – Interim injunction

At issue was whether a strike notice was valid and whether the Court would grant the employer an interim injunction to restrain the proposed strike by its employees.

The parties negotiated for a new collective agreement when the previous agreement expired. Negotiations broke down. The union issued the employer with a strike notice stating that:

• Union members would refuse to work overtime and refuse to work any shift alteration that varied from the master roster.
• The strike would begin on a particular date and would continue until such time as it was withdrawn via written notice.
• The strike would be continuous.

The employer sought to restrain the strike. It asked the Court to issue an interim injunction preventing the strike, arguing the strike notice was not compliant with section 93(2)(external link) of the Act. The employer claimed the nature of the strike was not clear or specific enough after some confusion among managers about what the refusal would mean in practice. The employer also claimed the lack of an end date invalidated the strike notice. Section 93(2) states that a strike notice must specify “the date and time on which, or an event on the occurrence of which, the strike will end”. The employer argued the wording in the strike notice of “until such time as this refusal is withdrawn via written notice” did not satisfy the requirement.

The Court declined to issue an interim injunction to restrain the strike (see paragraph 97). It found the wording of the refusal was entirely clear (see paragraph 57). The Court further found that although there was an argument the “event” did not satisfy the requirements, it was only very weak (see paragraph 80). The Court found that the balance of convenience favoured the union (see paragraph 95). Although there would be disruption to train services, that disruption was an integral part of withdrawing labour (see paragraph 90).

Auckland One Rail Ltd v Rail and Maritime Transport Union [2024] NZEmpC 101(external link)

Bowen v Bank of New Zealand [2024] NZERA 361

Employment Relations Authority – Personal grievance – Unjustified dismissal – Redundancy – Unjustified disadvantage – Bullying – Protected disclosure

At issue was whether the employee was unjustifiably dismissed by way of redundancy or disadvantaged by the actions of the employer.

The employee was the manager of a small team at a bank. She complained that her senior manager and one of her team members, who were in a relationship with each other, were bullying her. She also complained her senior manager had engaged in unethical or questionable business conduct. The employer then proposed a restructure which would result in the employee’s team being disestablished. The employee raised a personal grievance, alleging the restructure was motivated by retaliation for her complaint. The employer suspended the restructure. The employee made a protected disclosure under the then Protected Disclosures Act 2000(external link). The employee was placed on paid special leave while the employer investigated for over a year. The investigation found there was no bullying or questionable business conduct. The employer proceeded to make the employee’s role redundant.

The Authority found the employee was unjustifiably dismissed and disadvantaged because she was subjected to a restructure in retaliation for her complaints (see paragraphs 198–200). The Authority based its finding on the following:

• Extensive work had been undertaken shortly before the proposal to change the job descriptions of the employee’s team to redefine their roles. It made no business sense to disestablish the roles less than five months later (see paragraph 128).
• The employer had originally intended to move the team to another area within the bank, but after the senior manager the employee had complained of became involved in the process, the proposal became to disestablish the team instead (see paragraph 135).
• The employer still needed the work the employee had performed to be done. A new similar role was created and filled without the employee being given an opportunity to apply (see paragraphs 99, 108, 121, 131 and 135).
• The employer’s consultation regarding the restructure was flawed. It did not provide the employee with new information after the long hiatus. Although the employee raised valid concerns with the employer, it proceeded to confirm the disestablishment of her role 45 minutes later (see paragraph 185).

The employee’s claims for four other disadvantage personal grievances were dismissed, two of which because they were raised outside of 90 days (contrary to section 114(external link) of the Act). The employee was also unsuccessful with her claims for penalties on the basis that the employer had breached good faith and the terms of her employment agreement.

The determination was limited to ascertaining liability (see paragraph 18). A decision quantifying remedies may follow.

Bowen v Bank of New Zealand [2024] NZERA 361(external link)