Cases of Interest: November 2024

Courage v Attorney-General [2024] NZEmpC 222

Employment Court – Identity of employer(s) – Gloriavale plaintiffs

At issue was the identity of the plaintiffs’ employer when they were working at the Gloriavale religious community (Gloriavale) from the age of 6.

In an earlier judgment, the Employment Court (the Court) found the 3 plaintiffs carried out work at Gloriavale as employees and not as volunteers (see Courage v Attorney-General [2022] NZEmpC 77(external link)). In the current case, the plaintiffs sought a declaration as to the identity of the employer(s).

The Court noted that in a previous judgment involving Gloriavale plaintiffs (see Pilgrim v Attorney-General (No 2) [2023] NZEmpC 227(external link) (Pilgrim)) it found that their employer at all times was the Overseeing Shepherd position. The Court noted that in this instance the factual context differed as the 3 plaintiffs worked “in various workplaces within the overarching Gloriavale operational structure, including various companies and trusts” (see paragraph 2).

The Court outlined its approach to establishing who the employer was. It said (see paragraphs 7, 11):

• There is no onus on the plaintiffs to prove who the employer was.
• Identifying the employer is an “intensely factual exercise”.
• The Court approaches the issue objectively.
• While documentation purporting to record the relationship could be helpful, the reality could be different, and it is the reality that needs to be discerned.
• The Court weighs the evidence and makes an informed assessment of the identity of the employer on the balance of probabilities.

The Court said it was “possible for an employee to have joint, or multiple, employers” (see paragraph 9). In this case, identifying the employer was “complicated by the business structure and work arrangements the Gloriavale leadership put in place” (see paragraph 11).

The Court found that, as in the Pilgrim case, the Overseeing Shepherd position was the employer; or if not, the person holding the position at the time was the employer (see paragraph 54). It found, looking at the real nature of the relationship, it was possible there were also other employers (see paragraph 42). The Court said the complex operational structure and the evidence before the Court made it difficult to make any ruling as to who any other employers were (see paragraph 44). The Court said the identity of other employers would need to be addressed and resolved in the personal grievance claim (see paragraph 47).

The Court declared that, from the time each plaintiff was 6 years old, the Overseeing Shepherd was their employer. It reiterated that there may have been other employers, but that issue could not be determined at this stage (see paragraph 57).

Courage v Attorney-General [2024] NZEmpC 222(external link)

Kavallaris v Inframax Construction Ltd [2024] NZEmpC 212

Employment Court – Dismissal for serious misconduct – Interim reinstatement

Employment Court – Serious misconduct – Conduct of employee’s employment advocate – Attributing advocate’s conduct to employee

At issue was whether the Employment Court (the Court) should grant the employee interim reinstatement after the Employment Relations Authority (the Authority) declined to do so.

The employee divisional manager in a construction company had issues with the employer’s Chief Executive Officer (CEO) and with its human resources (HR) contractor. The employee engaged an employment advocate to represent him.

The employer subsequently was selected as preferred tenderer for a 5-year District Council (Council) roading contract. After making the selection, the Council scheduled an initial meeting with the employer. At that point, the employer had not yet secured the contract. The night before the meeting, the advocate forwarded to the “General Manager Infrastructure Service” at the Council an email she had written to the employer’s Board. The email outlined the employee’s complaints about the employer’s CEO and HR advisor. The General Manager Infrastructure Service had an influential role in deciding whether the employer would be successful in securing the Council contract.

At the meeting, the Manager showed the email to the CEO and asked if there were employment issues at the company. After reviewing the email, the Board commenced a disciplinary investigation. The employee claimed the investigation process was “ultra vires” and refused to participate in it. The employer then summarily dismissed the employee.

After the dismissal, the employer received a report on the employee’s complaints against the CEO and the HR contractor. Out of 22 complaints the report found only 1 minor complaint was substantiated.

The employee claimed the dismissal was unjustified. His reasons included that:

• He was not responsible for the advocate’s email to the Council.
• In the alternative, the email was a protected disclosure under the Protected Disclosures (Protection of Whistleblowers Act) 2022(external link).
• The employer had ulterior motivations for dismissing him.

The employee sought interim reinstatement pending the Authority’s investigation into his unjustified dismissal claim.

The Court declined to grant interim reinstatement (see paragraph 95). The Court took into account that:

• It was not arguable either that the employee had not authorised the advocate’s email; or that the email was not attributable to him (see paragraph 53).
• It was weakly arguable that there was a serious question to be tried in relation to (see paragraph 88) whether the:
  • advocate’s email was a protected disclosure
  • employer had an ulterior motive for dismissing the employee
  • employer had followed a fair dismissal process.
• It was not seriously arguable that the employee would be given permanent reinstatement, as (see paragraph 93):
  • The advocate’s email would have significantly damaged the employer’s trust and confidence in the employee.
  • The employee showed a high level of distrust towards the employer.
  • It was difficult to see how the employee would be reintegrated into the workplace.
• The balance of convenience did not favour the employee because (see paragraph 97):
  • As a skilled civil engineer, the employee could find work elsewhere.
  • Damages were an adequate remedy if the employer was unsuccessful in defending the personal grievance claim.
• The overall interests of justice did not favour the employee, because (see paragraphs 102, 103):
  • The employee had a relatively weak case for unjustified dismissal.
  • His conduct during and after employment had almost certainly caused irreparable damage to his relationship with the employer.
  • The impracticality of reinstatement meant the overall justice favoured the employer.

Kavallaris v Inframax Construction Ltd [2024] NZEmpC 212(external link)

Faulkner v AFFCO New Zealand Ltd [2024] NZERA 714

Employment Relations Authority – Personal grievance – Unjustified dismissal – Serious misconduct – Establishing that serious misconduct occurred

At issue was whether the employer justifiably dismissed the employee for his involvement in an altercation with another employee.

The employee was involved in an incident with another employee (TJS) while working in the stockyards at the employer’s meat processing plant. The employee was injured in the incident. When he went to the plant manager’s office immediately after the incident, the plant manager agreed he should get medical attention. The employee sought treatment and filed an assault complaint with the police.

The next day when the employee brought in ACC forms, the employer invited the employee to an investigation meeting. The employer provided collated witness statements to the employee. The employee claimed the witness statement from TJS was missing.

The meeting was attended by the employee, the plant manager and an HR advisor. The employee “denied the allegations of swearing at and pushing a gate into TJS, and alleged TJS had shoved the gate into him and punched him” (see paragraph 18). There was no clear mention of TJS’s witness statement in the minutes of the meeting. The employer showed the employee 2 other witness statements. The employee accepted one of the statements and disputed the other.

Later the same day the plant manager and HR advisor held a separate investigation meeting with TJS. TJS claimed the employee had sworn at him and then shoved a gate into his lower back. TJS admitted pushing the employee into a door. The plant manager asked TJS how the employee pushing TJS into a gate caused scratch injuries. TJS said he could have been scratched during pushing and shoving. He then resigned in the meeting.

After 2 further disciplinary meetings the employer dismissed the employee for serious misconduct. The employee claimed the dismissal was unjustified.

The Employment Relations Authority (the Authority) agreed the dismissal was unjustified. It said the employer’s conclusion the employee assaulted TJS “was not a conclusion it could draw based on the facts it had established” (see paragraph 45). In coming to that determination, it took into account that:

• It was more likely than not the employer did not provide the employee with TJS’s witness statement to respond to (see paragraphs 39, 40).
• The plant manager (see paragraphs 41–44) should have:
  • taken further steps to investigate inconsistencies in the witness statements
  • gone to the site of the altercation with the witnesses to test their versions of events
  • realised the employee was not responding to all the information the employer had
  • further tested the inconsistencies between the physical evidence of bruising on the employee’s head, which the plant manager saw, and the statements of 2 witnesses who said they did not see TJS punch the employee
  • been cautious about TJS’s evidence given he resigned when questioned.
• It was questionable (see paragraph 45) whether the:
  • employee had a reasonable chance to respond, given that he was unaware of TJS’s account
  • employer genuinely considered the employee’s explanations or comments.

The Authority awarded the employee:

• 4 week’s lost wages ($5,080 gross)
• $15,000 compensation for hurt and humiliation under s 123(1)(c)(i) of the Employment Relations Act 2000.

The Authority did not make any reduction to remedies based on the employee’s contribution to the personal grievance. It said the failings in the investigation process meant it was not established that the employee assaulted TJS (see paragraph 58).

Faulkner v AFFCO New Zealand Ltd [2024] NZERA 714(external link)