Employment case notes (ET 103)
Service & Food Workers Union v Spotless Services (NZ) Ltd— Employment Court, Wellington, April 2005
The Employment Court issued an interim injunction to prevent a company locking out its workers who were members of the union, which was preparing to strike.
After some months of bargaining, union members had decided not to ratify a new collective agreement the company was offering them. Strike notices were issued to the company and, in response, the company issued lockout notices to try and get union members to accept the collective agreement.
The union alleged the notices were uncertain about who the lockout applied to, the times and duration the lockout would be in place, and the nature of the demands being made in the notices.
Judge Shaw found there was a lack of clarity about the demands the company was making, but that who the lockout applied to and the time and duration of the lockout was largely clear.
She also found the day to day living obligations of the locked-out workers would be directly affected by the lockout, and that damages at a later date would be not an appropriate way of dealing with the situation. She concluded the lockout would not assist the ongoing bargaining process and issued an interim injunction.
Secretary for Education v Yates & Ors—Court of Appeal, Wellington, December 2004
An appeal against an Employment Court decision, which held the respondents were entitled to have cross-credits towards a three year education degree taken into account for remuneration purposes, was upheld by the Court of Appeal.
The respondents were employed as primary school teachers under a collective employment contract (CEC) which laid out remuneration entitlements for several different qualification groups. The “Q1” group included employees who held a diploma of teaching, the “Q2” group included those with a higher diploma of teaching or two-thirds of a university degree, and the “Q3” group included those who held an advanced diploma of teaching, a bachelor degree, or better. Generally, the same degrees were to be recognised for the purposes of the Q2 and Q3 groups but that was not always the case.
A drive to replace the diploma of teaching with the education degree as the basic primary teaching qualification resulted in the introduction of various degree courses in teaching. Some institutions were prepared to cross-credit existing diplomas of teaching to make two-thirds of the new degree.
The appellant was unwilling to allow those with only diplomas of teaching to gain automatic group Q2 status by enrolling for the new degree and cross-crediting their existing diplomas. The teachers, who were all Q1 status, enrolled for the new degree and were credited with two-thirds of the points required. But the appellant refused to recognise they had gained Q2 status.
The Court of Appeal found the Employment Court decision did not apply orthodox principles of contractual interpretation. It found the CEC already permitted degrees to be recognised for group Q3 which were not recognised for group Q2—meaning qualified recognition was possible. This meant a new qualification could be recognised for the purposes of one group but not another, and that two-thirds of the new degree obtained by cross-crediting a diploma of teaching did not count for the purposes of group Q2, so the teachers were not entitled to Q2 status.
Costs of $6,000 were awarded to the appellants.
Smith v Blue Mountain Lumber Ltd— Employment Court, Christchurch, December 2004
The Employment Court dismissed a woman’s challenge to an Employment Relations Authority determination that she was not constructively dismissed. The woman, who was employed in the defendant’s sawmill and timber business, had three significant work accidents. Two of the accidents involved injuries to the woman’s hand which she said related to her inferior protective gloves. In the third accident the woman was hit in the neck by a small piece of wood. This re-broke an undetected, childhood neck fracture. But the defendant told ACC that, because of a lack of evidence, it did not accept the injury was work related.
Each accident resulted in time off work and, after the third accident, the woman was off work for seven months. When she was passed as fit to return to work, she did not do so, so the defendant asked her to either return to work or provide a medical certificate. The woman said that she could not return because the defendant had breached its obligation to provide her with a safe workplace and safe systems of work.
She claimed she was constructively dismissed, but Judge Colgan found the defendant did not breach its workplace health and safety obligations. He also found the defendant had investigated the accidents although it should have involved the woman in the process more.
The judge found the defendant’s acts or omissions did not justify a claim of constructive dismissal when the plaintiff abandoned her employment after many months away from the workplace. The challenge was dismissed and costs were reserved.
Chief executive of IRD v Buchanan— Employment Court, Wellington, December 2004
An IRD challenge to an Employment Relations Authority determination, which found that disparity of treatment meant the defendants’ otherwise justified dismissals were unjustifiable, was unsuccessful.
A cross-challenge to the Authority’s determination finding the defendants had been guilty of serious misconduct, which meant their dismissals were justified, was successful. The two defendants were employed by the IRD to deal with public tax related inquiries. During their employment a new code of conduct, which did not allow employees to deal with the tax affairs of their close relatives, was introduced. While both defendants attended a training session on the code and were given their own copies of it, they did not read it.
When an audit of employees’ use of the computer database of taxpayer records was undertaken it was revealed both defendants had accessed family members’ accounts for various purposes. The IRD considered this to be a serious conflict of interest and the defendants were called to disciplinary meetings.
The decision maker accepted the defendants had not read the code of conduct and did not know they were doing anything wrong. But, at a later meeting, they were summarily dismissed for breaching the code of conduct, their employment agreements, and their statutory obligations.
Judge Goddard found the defendants were “ignorant employees” and accepted their argument that their failure to read the code explained their conduct. He also upheld the Authority finding that the defendants were not treated consistently with three other employees, who committed similar breaches of the code but were not dismissed, which rendered the defendants’ dismissals unjustified.
The defendants were reinstated and costs were reserved.
Unisys NZ Ltd v Ruddlesden & Ors—Court of Appeal, Wellington, December 2004
An IT company’s application for leave to appeal an Employment Court decision which dealt with employee remuneration rates was turned down by the Court of Appeal.
The respondents were employed by the applicant as help desk analysts. They were supposed to be remunerated to within 10 percent of a fair and competitive market rate. But the percentage of the current market rate the respondents were paid was different to people in the same position who later joined the company.
The Employment Court found the company had breached the respondents’ employment agreements in relation to their obligation to pay market-related remuneration. In response, the company argued the objective of fair and competitive market remuneration could not have binding force, and that the court had made an error in judgment by placing too much emphasis on that principle.
However, the Court of Appeal held there was no error of approach or principle in the Employment Court’s decision on the interpretation of the employment agreements with the respondents. The application to appeal was dismissed and costs of $3000 plus disbursements were awarded to the respondents.
—Selected and written
by Miriam Bell
Previous Employment Case Notes
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