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Cases of Interest: February 2025
A summary of interesting or topical employment cases.
New Zealand Tramways and Public Passenger Transport Employees’ Union Wellington Branch Inc v Tranzurban Hutt Valley Ltd [2025] NZCA 1
Court of Appeal – Rest and meal breaks – Work period – Split shifts
At issue was whether, when employees worked on split shifts, there was 1 work period or 2 discrete work periods for the purposes of calculating entitlements to rest and meal breaks.
The employer operated buses used for public transportation. The bus driver employees were often rostered to work for a period in the morning and a period in the afternoon, or split shifts. For the purposes of rest and meal breaks, the employer treated the split shifts as 2 separate work periods under section 69ZC(external link) of the Employment Relations Act 2000 (Act) when the period between the shifts exceeded 2 hours. The union disputed the employer’s approach.
The Court of Appeal found that the employees’ work period ended when they signed off for the first part of a split shift and began again when they signed on again for the second part. It held there was nothing in the wording of section 69ZC that suggested there could not be multiple starts and ends of work in any period (see paragraph 46). The Court of Appeal noted the employees were free to do whatever they wished between split shifts and did not require breaks during that time (see paragraph 50). The Court of Appeal agreed with the employer that if it was required to provide breaks during periods the employee was not actually working that would create an absurdity (see paragraph 45).
Chief of the New Zealand Defence Force v Williams [2025] NZEmpC 16
Employment Court – Availability provisions – Employment Relations Act 2000, section 67
At issue was whether provisions in the individual employment agreements of 3 employees were availability provisions and, if so, compliant with section 67D of the Act.
The employees were regional technical managers for the New Zealand Defence Force (NZDF). Their employment agreements said that their salaries were full compensation for work required and they would not be eligible for overtime payments. The hours of work section stated (at paragraph 15):
You are required to work such hours and days as are reasonably necessary to achieve the performance expectations established in your Position Description, your Performance and Development Plan, those directed by your manager and those required by the NZDF to generally meet operational needs.
The employees were already working for the NZDF when section 67D(external link) of the Act was introduced. The section applied to their agreements from 1 April 2017. Section 67D states that if the employment agreement includes a provision that says the employee is required to be available to accept any work that the employer makes available, that is an availability provision. Also, if the employment agreement contains an availability provision, the agreement must provide for the payment of reasonable compensation to the employee for making themselves available to perform work.
After arranging for their direct reports to be compensated for their availability provisions, the employees raised their own claim for compensation with the employer. The NZDF disputed their eligibility and instructed them not to be on call. The issue for the Employment Court (Court) was whether the employees were entitled to compensation for the 2 years between section 67D becoming applicable and the employer’s instruction not to be on call.
The Court found that section 67D did apply to the employees during that time because:
- The hours of work provision in the employment agreement was an availability provision. It specifically required the employees to be available outside of their core hours when reasonably necessary (see paragraph 35).
- The parties acted in accordance with that term. The employees were on an on-call roster and were in practice called upon (see paragraphs 36–55).
The Court found there was no evidence of agreement between the parties that their remuneration included compensation for their availability. It ordered the parties to compromise on the quantum of reasonable compensation and return to the Court if unable to agree (see paragraphs 64–67).
Chief of the New Zealand Defence Force v Williams [2025] NZEmpC 16(external link)
Wilson v AZ Scaffolding (2017) Ltd [2025] NZEmpC 21
Employment Court – Sanction – Fine
At issue was whether the Court would order the employer to pay a fine for failing to pay the employee in accordance with a series of determinations of the Employment Relations Authority (Authority).
The Authority ordered the employer to pay compensation of $15,000 for unjustified dismissal and arrears of $198 (see Wilson v AZ Scaffolding (2017) Ltd [2023] NZERA 249(external link)). It further ordered the employer to pay the employee $3,000 as a contribution to the employee’s costs of representation (see Wilson v AZ Scaffolding (2017) Ltd [2023] NZERA 336(external link)). The employer, who did not participate in the Authority’s investigation, then unsuccessfully made a reopening application (see AZ Scaffolding (2017) Ltd v Wilson [2023] NZERA 536(external link)) and was ordered to pay the employee a further $1,400 in costs (see AZ Scaffolding (2017) Ltd v Wilson [2023] NZERA 604(external link)). The employer did not pay the amounts it had been ordered to pay. The employee then applied to the Authority for a compliance order. The employer was ordered to comply with the previous determinations and pay the employee interest on the amounts owing as well as a further $1,000 in costs (see Wilson v AZ Scaffolding (2017) Ltd [2023] NZERA 722(external link)).
The employer still did not pay the amounts owing. The employee applied to the Court for a sanction. The employer did not engage with the Court. The Court inferred that the non-payment was deliberate (see paragraph 18). The Court ordered the employer to pay a fine of $10,000 under section 140(6)(d)(external link) of the Act as well as $3,000 in costs (see paragraphs 21 and 23).
Wilson v AZ Scaffolding (2017) Ltd [2025] NZEmpC 21(external link)
Idea Services Ltd v Wills [2025] NZEmpC 28
Employment Court – Personal grievance – Unjustified dismissal – COVID-19 vaccination
At issue was whether the employee was unjustifiably dismissed when she decided not to be vaccinated against COVID-19.
The employee was a schedule coordinator in the health sector. The role involved rostering support workers in residential and supported living from a local office. When the COVID-19 Public Health Response (Vaccinations) Order 2021(external link) (Order) came into force with regards to health workers on 25 October 2021, the employer required employees in certain roles to be vaccinated. The employee declined to be vaccinated. The employer advised the employee there were no redeployment opportunities. The employee asked if she could work from a separate venue or home, but the employer rejected her suggestions. The employer dismissed her. The employee raised a personal grievance for unjustified dismissal.
The Court found that the employer had substantive justification, but the dismissal was procedurally unjustified for the following reasons:
- The employer wrote in a letter to the employee that a meeting would be arranged with the employee to consider what the Order meant for her employment. The employer never went on to arrange a meeting, thereby failing to comply with its own process (see paragraphs 60–62).
- The employment agreement did not stipulate that the employee was required to work from a certain premises, only that she would be based in the “Taranaki area”. The employee’s suggestion that she work from another premises or from home was dismissed by the employer without communicating all of its considerations to her, thereby breaching good faith (see paragraphs 64–67).
- The employer used template letters because it was managing over 50 employees who were declining to be vaccinated. However, the employer was obliged to check each letter was accurate for its recipient. In this case, the letter said the employee had not made any alternative suggestions when that was inaccurate. The letters also referred to a potential dismissal that then turned into an actual dismissal without any further consultation or engagement. The Court found the employee was not treated with dignity and respect (see paragraphs 69–75).
- The timeline was not so urgent that the employee could not have worked from home during the consultation period. The Order did not prevent her from working from home (see paragraphs 77–82).
- Although the employee was not entitled to any sick leave or annual leave, the employer should have considered whether or not it would allow her to take leave without pay during a consultation process (see paragraphs 84–85).
The Court concluded that the employer’s decision to dismiss the employee was peremptory. It was inconsistent with its own process. The employer did not put all relevant information to the employee and did not properly consult with her (see paragraph 91). The Court noted the employer was a well-resourced organisation with specialist advice and needed to do better (see paragraph 93). The dismissal was therefore unjustified (see paragraph 94).
The Court ordered the employer to pay the employee $5,000, the 2 week notice period she was not paid and 4 weeks’ lost wages (see paragraphs 110, 115 and 123).
Cuc v Huynh [2025] NZERA 68
Employment Relations Authority – Personal grievance – Unjustified dismissal – Unjustified disadvantage – Breach of employment agreement – Migrant worker
In 1 of 8 closely related determinations, at issue was whether the employee was unjustifiably dismissed or disadvantaged and whether the employer should pay a penalty for breaching the employment agreement.
The employee was a nail technician at the employer’s salon. The employer recruited her in person in Vietnam. After successfully applying for a work visa, the employee moved to New Zealand with her husband and children. When the employee commenced work, the employer instructed her to perform other services in the salon that she was not trained in such as massage, waxing and shampooing. One male client asked to receive an intimate massage, which the employee refused. The employer told the employee such requests were a normal part of doing business and that she could refuse but should do so politely. The employee asked the employer to pay her wages into her bank account with tax already deducted instead of being paid cash. The employer suggested the employee return to Vietnam for more training at the employee’s own expense on unpaid leave. The employee was concerned the employer was threatening to deport her. The employee went with some colleagues to meet an employment advocate to learn about their employment rights. The employer learned of the visit to the advocate and dismissed the employee.
The parties disputed whether the employee had signed the employment agreement, and if so, when. Nonetheless, the employer was unable to rely on any 90-day trial because she did not pay the relevant notice period (see paragraph 43). The Authority found that the employee was dismissed because “her employer was uncomfortable that she had sought advice about her employment rights under the law” (see paragraph 46). The Authority held the employee was unjustifiably dismissed (see paragraph 51).
The Authority also held the employee was unjustifiably disadvantaged by the actions of her employer when it unilaterally changed her job description, did not pay wages when they fell due and failed to protect the employee from inappropriate client requests thereby making her feel unsafe (see paragraph 60). It also found the employer had breached the employment agreement and should pay a penalty (see paragraph 73).
The Authority ordered the employer to pay the employee $20,000 in compensation, $9,491 in lost wages and a $2,500 penalty (see paragraph 84).
The employee did not make a wage or holiday pay claim as it intended for the Labour Inspectorate to pursue those claims (see paragraph 8).