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Employment Today, HR Solutions - Thomson Reuters

Employment Today, HR Solutions - Thomson Reuters



Exiting Employees

What's New

Exiting Employees — What's New
Alert24
This “What's New” records additions to commentary or legislation as they appear online. It may also contain occasional items of general information but it is not a news service.
17 June 2021
Commentary
The following content has been updated:
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Compliance orders at [10.12.04];
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Membership at [11.5.04].
The following cases were added to the commentary:
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Leota v Parcel Express Ltd [2020] NZEmpC 61 at [10.3.06(1)].
8 November 2019
Commentary
The following content has been updated:
• 
the right to raise a personal grievance and the Employment Relations (Triangular Employment) Amendment Bill, at [10.8.02];
The following cases were added to the commentary:
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Smith v Electrical Training Company Ltd [2019] NZERA 420, at [6.4.01(1)(o)];
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Rayner v Director-General of Health [2019] NZEmpC 65, at [6.4.01(1)(p)];
30 July 2019
Commentary
The following content has been updated:
• 
redeployment sub-chapter has been rearranged and case added, [8.8];
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the list of personal grievances, [10.2];
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discrimination in employment and exceptions, [10.5];
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reinstatement, [10.11.03];
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compliance orders, [10.12.04];
The following cases were added to the commentary:
• 
Waikato District Health Board v Archibald [2017] NZEmpC 132, [10.11.04(1)]; and
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31 May 2019
Legislation
The following commentary has been updated with the Employment Relations Amendment Act 2018:
• 
continuity of employment if employer’s business is restructured at [8.2.03];
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discrimination on the grounds of union membership status at [10.5.04];
Commentary
The following cases were added to the commentary:
• 
Hines v Eastland Port Limited [2018] NZEmpC 79 and Hines v Eastland Port Limited [2018] NZCA 564 at [6.2.03(2)];
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FGH v RST [2018] NZEmpC 60 at [7.16.01];
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Richora Group Ltd v Cheng [2018] NZEmpC 113 at [10.3.02];
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• 
TUV v WXY [2018] NZEmpC 154 at [10.15.04];
15 February 2019
Legislation
The following commentary has been updated with the Employment Relations Amendment Act 2018:
• 
reinstatement at [10.11.03].
7 August 2018
Legislation
• 
the Employment Relations Amendment Bill has been added to the commentary at [8.2.03], [10.5.04] and [10.11.03];
• 
the Contract and Commercial Law Act 2017 has been added to the commentary at [11.3.04] and [11.4.03].
Commentary
The following content has been updated:
• 
sample written warning letters have been updated at [6.3], [6.4] and [6.9];
• 
the factors to be relied on for dismissing an employee for sickness have been updated at [7.4.01];
• 
the sample settlement agreement letter has been updated at [10.15.04];
• 
the membership of the Employment Court has been updated at [11.5.04].
The following cases were added to the commentary:
• 
Nel v ASB Bank Limited (No.2) [2017] NZEmpC 97 at [6.10];
• 
• 
• 
DML v Montgomery [2014] NZHRRT 6 at [7.15.03];
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Lee v Y & B Investment Ltd & Anor [2015] NZERA Auckland 392 at [7.15.03];
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Singh v Palaniammah Ltd [2015] NZERA Wellington 84 at [7.15.03];
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Williams v The Warehouse Ltd (2008) 6 NZELR 32 at [7.16.01];
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Beckingsale v Canterbury District Health Board [2015] NZERA Christchurch 163 at [7.16.01];
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Waikato District Health Board v Archibald [2017] NZEmpC 132 at [8.4.02];
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ALA v ITE [2017] NZEmpC 130 at [10.12.10].
27 November 2017
Legislation
Commentary has been updated to include reference to the March 2017 update to the Preventing and Responding to Bullying at Work publication — see [7.16]
Commentary
The following cases were added to the commentary:
• 
Chief Executive of the Ministry of Social Development v Tuilaepa [2017] NZEmpC 84: employer's investigation into alleged assault by employee was sufficient and provided evidence from which the employer could reach the decision that serious misconduct had occurred — see [6.4.01] and [7.9.01].
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ASG v Harlene Hayne, Vice-Chancellor of the University of Otago [2017] NZSC 59: disclosure of information about an employee and criminal charges to the employer did not breach s 200 of the Criminal Procedure Act 2011 as the employer had a genuine interest in knowing the information — see [7.14.01].
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Stormont v Peddle Thorp Aitken Ltd [2017] NZEmpC 71: redundancy was not genuine, process fatally flawed and carried out because the employee was pursuing an unpaid bonus — see [8.5.01].
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Spotless Facility Services Ltd v Mackay [2017] NZEmpC 15: s 122 of the Employment Relations Act 2000 applied and an unjustified disadvantage was found rather than the constructive disimissal claimed — see [10.2].
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Hemmingson v Swan t/a Barker's Groom Room [2016] NZERA Auckland 212: constructive dismissal found in case where transgender woman told by employer that transitioning to a woman would make clients uncomfortable — see [10.3.02].
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Ramkissoon v The Commissioner of Police [2017] NZEmpC 85: unjustified disadvantage found for employee's lack of promotion — see [10.4.02].
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Xtreme Dining Limited t/a Think Steel v Dewar [2016] NZEmpC 136: considered whether s 124 of the Employment Relations Act 2000 allowed a 100 per cent reduction in remedies — see [10.11.06].
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Peter Reynolds Mechanical Limited v Denyer [2016] NZCA 464: consideration of s 140 of the Employment Relations Act 2000 concerning the imposition of fines — see [10.12.10].
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Domingo v Suon t/a Town and Country Food [2017] NZEmpC 23: fine of $11,000 imposed for breach of compliance order — see [10.12.10].
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ALA v ITE [2017] NZEmpC 39: $7,500 fine for deliberate breach of compliance order — see [10.12.10].
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Borsboom v Preet PVT Ltd and Warrington Discount Tobacco Ltd [2016] NZEmpC 143: disproportionate penalties replaced with higher penalties — see [10.13.06]
• 
Lumsden v Skycity Management Limited [2017] NZEmpC 30: employer breached terms of settlement agreement by keeping adverse comments about employee on its computer system — see [10.15.04].
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Singh v Trustees of the Wellington Rudolf Steiner Kindergarten Trust [2017] NZEmpC 47: considered whether employee precluded from raising a personal grievance as this was precluded by the settlement agreement — see [10.15.04].
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8i Corporation v Marino [2017] NZEmpC 69:considered whether s 149(3) prevented an the Authority or the Court inquiring into the enforceablility of agreed terms of settlement signed by a mediator — see [10.15.04].
15 November 2016
Legislation
The Health and Safety at Work Act 2015 came into force on 4 April 2016. The commentary as been amended for this Act at [7.10].
The Employment Relations Amendment Act 2015 changed the powers of the Employment Relations Authority to make compliance orders [10.12.04].
The Employment Relations Amendment Act 2016 made a number of changes to the penalties regime, including who may bring an action and the time limit to bring an action [10.13.06].
Commentary
The following cases have been added to the commentary:
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A Ltd v H [2016] NZCA 419: the Court of Appeal found that the Employment Relations Authority had erred in law when it held that the employment investigation had been insufficient. The Court rejected the premise that each witness had to be questioned in exactly the same manner [6.4.01(1)(j)] and [6.10];
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ASG v Harlene Hayne, Vice-Chancellor of the University of Otago [2016] NZCA 203: the Court of Appeal found that an employee should have disclosed criminal charges for assault and wilful damage to his employer. The fact that he did not do so was a breach of the duty of good faith.
7 December 2015
Commentary
The following cases have been added to the commentary:
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Nathan v C3 Limited [2015] NZCA 350: the Court of Appeal found the Employment Court had erred in concluding the reasons relied upon by C3 Limited for dismissing Mr Nathan did not amount to discrimination on the basis of his status as a union delegate and health and safety representative — see 10.5.04(2).
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Campbell v Commissioner of Salford School [2015] NZEmpC 122: a case of unjustified dismissal were the Employment Court found that the school's finding of serious misconduct and the consequential decision to dismiss Ms Campbell was not justified because the employee was not given a reasonable opportunity to respond to her employer's concerns, the investigation into the allegations were delayed for nearly a year, the findings were influenced by confidential information which the employee had no opportunity to comment on, and because the distinction between performance and conduct was not identified and considered — see 6.4.01(1)(k).
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Waterford Holdings Ltd v Morunga [2015] NZEmpC 132: when the Police were called to investigate an allegation of animal mistreatment, the employee concerned became aggressive and was eventually dismissed. However the Employment Court found that while the dismissal was substantively justified, it was procedurally unjustified as the employee was not given witness statements — see 6.4.01(1)(l).
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McIvor v Saad [2015] NZEmpC 145: at the end of an alleged work trial an employer unilaterally reduced the employee's hours and when the employee did not return to work, the employer claimed he had always been a volunteer, however the Employment Court found constructive dismissal — see 7.17.02(2)(a) and 10.3.02(1).
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Wellington Free Ambulance Service Incorporated v Austing and Gibson-Horne [2015] NZEmpC 164: this was an application for interim reinstatement by two employees who had been dismissed for intimidating behaviour. The employees' application was successful in both the Authority and, following a challenge by the employer, in the Court — see 10.11.03(3).
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JP Morgan Chase Bank NZ v Lewis [2015] NZCA 255: a Court of Appeal decision that a settlement agreement between the parties was not an employment agreement, but a new agreement intended to replace the earlier employment agreement. This meant that neither the Employment Relations Authority nor the Employment Court had jurisdiction to award damages for breach of the settlement agreement or to deal with any breach of such a settlement agreement — see 11.3.04.
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Adams t/a Untouchable Hair & Skin v Brown [2015] NZEmpC 77: a question of whether a penalty should be imposed on an employer for failing to provide the employee with a copy of a written employment agreement — see 6.6.01.
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Hansen v Idea Services Limited [2015] NZERA 87: a failed claim of unjustified dismissal where the employer had lost trust and confidence in the employee — see 6.4.01(1)(m).
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Sealord Group Limited v Pickering [2015] NZEmpC 76: a case of serious procedural defects, where none of the alleged performance issues had been raised with the employee before his dismissal — see 7.3.02(1).
9 July 2015
Commentary
The following cases have been added to the commentary:
• 
H v A Ltd [2014] NZEmpC 189: a claim of unjustified dismissal was upheld largely due to procedureal defects in the employer's investigation of a sexual harassment claim against the employee: [6.4.01] and [10.11.03].
• 
Campbell v The Commissioner of Salford School [2014] NZERA Christchurch 151: a claim of unjustified suspension. The employer had not give the employee a proper opportunity to respond to the proposed suspension: [6.6.01] and [10.4.02].
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Grace Team Accounting Limited v Brake [2014] NZCA 541: the Court of Appeal has reviewed the law on redundancy, see [8.3.02] and [8.5].
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Q v Commissioner of Police [2015] NZEmpC 57: the Employment Court refused to reinstate and employee who was unjustifiably dismissed because the employee had not accepted any wrongdoing on his part: [10.11.03].
The following information has been updated:
• 
commentary on specified categories of employees under Part 6A of the Employment Relations Act 2000 has been amended at [8.2.03].
• 
commentary on criteria for selecting staff for redundancy has been updated at [8.4.03].
• 
commentary has been updated on changes to the how and when the Employment Relations Authority provides determinations: [11.4.10].

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