EMP Cheatsheet 2017 - Lecture notes 1-12 PDF

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Question 1: JUSTIFICATION AND REDUNDANCY Statutory test for justification test set out in s 103A moved from a “WOULD” (objective test) to a “COULD” test. JUSTIFICATION: By 2004 there was a strong body of criticism maintaining that the test developed by the courts had shifted from being an objective ...

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Question 1: JUSTIFICATION AND REDUNDANCY Statutory test for justification test set out in s 103A moved from a “WOULD” (objective test) to a “COULD” test. JUSTIFICATION: By 2004 there was a strong body of criticism maintaining that the test developed by the courts had shifted from being an objective evaluation and instead had become increasingly subjective and employer focused. The introduction of the original s 103A statutory test in the ERA was a response to this criticism, whereas the current s 103A, enacted in 2010, appears to be an attempt to partially return to the pre-2004 position THE ELEMENTS OF JUSTIFICATION: Justification involves two elements: 1.The employer must have a substantive reason for the dismissal or other action and 2.Must carry out the dismissal in a manner that is procedurally fair. The employer must advance substantive reasons sufficient to justify the dismissal or the challenged action. In most cases of dismissal the employer will seek to substantively justify the dismissal on one of three grounds: The employees misconduct is sufficiently serious to justify dismissal either summarily or on notice / The employee lacks the requisite capacity for the job to such an extent as to justify dismissal / The employees position has become redundant to the needs of the employer or the employee is not prepared to accept new conditions of employment that the employer can justify on commercial grounds. If both elements of justification cannot be established the employee will have a legitimate grievance / The basic elements of procedural fairness in disciplinary cases are now set out in s 103A(4). EVOLUTION OF THE TEST OF JUSTIFICATION: Between 1973 and 2004 there was no attempt to define justification in the legislation, the matter being left for the courts to determine / Over the years the test became more employer-focused with the effect of increasing the range of discretion available to an employer and reducing the ability of the courts to intervene to overrule an employers decision. Substantive justification: employee conduct is sufficiently serious to justify dismissal summarily or on notice / employee lacks the capacity to carry out the job to such an extent as to justify dismissal / employee’s position has become redundant or employee does not accept commercially justifiable changes in the nature of the work. Case law test for justification: Wellington Road Transport Union v Fletcher Construction Co [1983] the Court has refrained from laying down an abstract set of principles however account is taken of: “the conduct of the worker; the conduct of the employer; the history of the employment; the nature of the industry and its customs and practices; the terms of the contract (express, incorporated and implied); the terms of any other relevant agreements, and the circumstances of the dismissal. The Court also has regard to good industrial practice which includes some consideration of the moral and social attitudes of the community.” The role of the court is to review the employers decision, and that an employer has a right of choice between fair and reasonable options. W & H Newspapers Ltd v Oram [2001] focus should be on the actions of particular employer / “COULD” suggests a range of reasonable responses – allows possibility that only completely unreasonable responses fall outside acceptable limits. The courts approach here focused very much on the actual employer rather an objective "fair and reasonable employer" so that the circumstances of the particular employer seemed to dominate the decision / The possibility for a focus on the actual employers subjective response arguably increased once a dismissal could be justified if it was within range of "reasonable responses" - this potentially allowed employers extremely wide latitude. Telecom South Ltd v Post Office Union [1992] "a dismissal is unjustifiable if it is not capable of being shown to be just in all the circumstances. Justifiability is directed at considerations of moral justice. Whether a dismissal can be said to be justifiable can only be determined be considering and balancing the interests of worker and employer"

S 103A: a specific response to Oram. Sets an objective test in all the circumstances. Air New Zealand Limited v Hudson [2006] X (White) v Auckland District Health Board [2007] Air New Zealand v “V” [2009] the Court held that the clear and unambiguous wording of the section required the Court to consider, on an objective basis the employer's action in all the circumstances at the time the dismissal or action occurred 2010 amendments to s 103A: reverting to the could test. limits on procedural fairness considerations. Angus v Ports of Auckland Ltd [2011] COULD contemplates that there may be more than one fair and reasonable response or other outcome that might justifiably be applied by a fair and reasonable employer in these circumstances / the authority and the court must continue to make an assessment of the conduct of a fair and reasonable employer in the circumstances of the parties and to judge the employers response to the situation that gave rise to the grievance against that standard. COULD meant that the authority or court should no longer determine justification by a single standard of what a notional fair and reasonable employer in the circumstances would have done - essentially this recognises a range of responses approach but requires that this range be measured against the objective standard. Break v Grace Team Accounting [2013] The failure to provide proper information initially led the plaintiff to conclude that she was to be dismissed because she had recently revealed a chronic health condition / When it was discovered that the dismissal was based on financial grounds, the information provided to the plaintiff was not sufficient to allow her to discover a number of flaws in the employers analysis / Break had been "poached" from another firm with promises of stable employment, was told the redundancy was because of a non-existent downturn in business. Grace Team Accounting Ltd v Brake [2014] The ERA found that the decision to make her redundant was substantively justifiable under s 103A of the Employment Relations Act 2000 (the Act). Ms Brake challenged that determination. The Employment Court found that GTA had failed to discharge the burden of showing the dismissal was justified; that had GTA not made an error in its financial calculations that led to the redundancy, there would not have been any immediate need for Ms Brake’s redundancy; had it analysed its own practice on the basis of correct information, it would not have offered Ms Brake employment and motivated her to leave her previous employment; and it could not adequately explain how Ms Brake came to be in the redundancy proposal after two other employees had already accepted the situation and agreed to leave, thereby providing GTA with sufficient savings to render Ms Brake’s redundancy unnecessary. (1) clear words of s103A required EC to determine on objective basis whether employers actions and how it acted were what reasonable employer would have done - EC applied correct test in finding that appellant breached s103A and dismissal was unjustified; - (2) EC did not err in taking into account prior matters affecting conduct at time of dismissal including evaluating dismissal on wrong information, provision of wrong information in consultation process and redundancy decision based on wrong information; - (3) EC applied correct principles in making awards based on CA decision of Sam's Fukuyama Food Services v Zhang - consequences of redundancy decision serious and no error of principle - award of compensation for lost remuneration under s128 and compensation for humiliation upheld; (4) appeal dismissed - questions of law answered "yes" - appellant (self represented) awarded usual disbursements and travel expenses of McKenzie friend - costs to lie where they fell in relation to leave application

PERSONAL GRIEVANCE:

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A personal grievance is a claim that an employee may have against their employer or former employer that arises out of the employee's agreement The range of claims that may give rise to a personal grievance are set out in s 103 ERA and includes most employers actions, or in some cases actions tolerated by employers, that have detrimental impact on an employee in the course of their employment S 66 provides that an employer must have a genuine reason for offering a fixed term employment agreement S 67 requires that probationary periods be in writing S 67A and 67B exclude personal grievance rights as they relate to dismissal during the permitted 90 day trial period

BASIC PG PROCEDURE: 1. Raising the personal grievance: must be raised with the employer within 90 days of the facts giving rise to the grievance occurring or coming to the notice of the employee 2. Mediation: if the grievance is not resolved by the parties, the employee will normally be required to attempt to resolve the grievance through mediation 3. Investigation by the ERA: investigates the problem and issues a determination which will specify findings of fact and law, and makes any orders as to remedies that it deems appropriate 4. Challenges to the EC: if either party is dissatisfied with a determination of the Authority it may refer the matter to the EC. The Court provides the first stage in the traditional judicial phase, as opposed to the investigative phase of the procedure 5. Appeals to the CA or SC: a decision of the EC can be appealed, with leave, on a point of law only MUTUAL TRUST & CONFIDENCE:  The implied term was accepted as being a desirable development by the HL in Malik v Bank of Credit and Commerce International SA [1997] where Lord Steyn held that "if conduct objectively considered is likely to cause serious damage to the relationship between employer and employee a breach of the implied obligation may arise."  On the employee's side, the duty is related to, and in some cases overlaps with the employee's duty of fidelity.  Implied duty of trust and cooperation has more commonly been applied to behaviour by employers, especially in the context of constructive dismissal. GOOD FAITH AND MUTUAL TRUST AND CONFIDENCE:  Since the enactment of the ERA the implied term of mutual trust and confidence operates in parallel to the statutory duty of good faith in relation to individual employees' terms and conditions of employment Wikaira v Chief Executive of the Department of Corrections [2016] KEY FACTS: Ms Wikaira was employed in the role of Corrections Officer for the Department at the Northland Prison. She had been a long serving employee with an unblemished employment record. Ms Wikaira was charged with wilful damage after striking her stepfathers windscreen in self defence causing it to crack Ms Wikaira did not immediately tell her employer of the events that led to her being charged or that she would have several Court appearances.

On the day of her first Court appearance, she was scheduled to work and instead of advising her employer of the Court date, she reported sick. She only disclosed to her employer the fact of the charges when, on legal advice she decided to admit the charge and sought a letter from her employer in support of her application for discharge without conviction. Once it learned of the charges, the Department asked Ms Wikaira to keep it informed of the steps in the Court proceedings. She was ultimately granted a discharge without conviction which at law amounts to an acquittal. The employer then appointed an external investigator and initiated a disciplinary process which lead to her dismissal, principally on the basis that she had: 1. Admitted to unlawful conduct. 2. Brought the employer into disrepute. 3. Breached the Code of Conduct by not immediately reporting the fact of the criminal charges. This was found to be unjustifiable decision by the EC - The Court was concerned that the decision was based on flawed assumptions about the real impact on reputation and a misinterpretation of the code of conduct. Ms Wikaira was dismissed for three breaches of its Code which the Department maintained constituted serious misconduct, in particular that Ms Wikaira had: 1. Engaged in “unlawful action” because she was charged with the criminal offence of wilful damage on 13 February 2015 to which she plead guilty on 22 April 2015; 2. Failed to disclose the criminal charge which was laid against her on 13 February 2015 until 11 March 2015, by which time she had already appeared in the Kaikohe District Court twice; 3. Potentially brought the Department into dispute by appearing in the District Court on four occasions and by having a warrant issued for her arrest due to her non- appearance in Court on 12 May 2015.” In relation to the alleged breaches: 1. Ms Wikaira denied that she had engaged in an ‘unlawful action’ because she only pleaded guilty to the charge of wilful damage on her lawyer’s advice and further that because she was discharged without conviction this further supported her claim that her actions were not unlawful and consequently she did not breach the Code. The Department did not accept that Ms Wikaira’s interpretation of the Code and referred to the specific provision in the Code which includes “admitting” to a criminal offence, which Ms Wikaira did by pleading guilty. 2. In relation to the failure to disclose the criminal charges in a timely manner, Ms Wikaira admitted that she did not disclose the criminal charges to the Department until her second District Court appearance on 11 April, however Ms Wikaira maintained that she did not realise she had been charged with a criminal offence until 11 April 2015. The Department did not accept that explanation. It relied upon the fact that before Ms Wikaira disclosed the criminal charge she had attended the police station, had been charged with a criminal offence, had been summoned in writing to appear in the Kaikohe District Court and had also signed the police issued summons to acknowledge she knew she was required to attend Court or a warrant could be issued for her arrest. She had also appeared the District Court twice and on each occasion had been bailed, she had signed a Bail Notice which acknowledged she was aware that a summons could be issued if she did not appear in Court.

3. In relation to the claim of disrepute relating to her court attendance and having a warrant issued for arrest due to her non-appearance in Court on 12 May 2015, there was evidence before the Department that the arrest warrant was issued due to miscommunication between Ms Wikaira’s criminal lawyer and the District Court staff. The Department concluded that despite the apparent explanation for the warrant for arrest, Ms Wikaira’s conduct still bought the Department into disrepute. Remedies The Employment Court awarded substantial remedies in this case including: 1. Reinstatement to the Employee’s former position. 2. Lost earnings from the date of the dismissal through to the reinstatement. 3. Compensation for hurt and humiliation of $20,000. The remedies of a monetary nature were reduced by 15% for Ms Wikaira’s contribution to the situation. It was noted that she had been misled her manager about needing sick leave when she had her first court appearance and that she had not properly complied with the request to keep the Department updated as to the progress of her court proceedings.

Question 2: EMPLOYMENT STATUS – raising a PG out of time Defining employees: an important threshold issue. Only employees are entitled to the benefits and protections provided by the ERA / Only employees are entitled to minimum code provisions laid down in other emp legislation / Employers are vicariously liable for employees / In recent years the issue that only employees can negotiate collective agreements and take industrial action has re-emerged  AFFCO. Contractor: no holiday pay / CL doesn’t allow contractors to collude together = price fixing is not allowed = cannot negotiate collective agreements / cannot challenge a dismissal through the PG procedure. Dependant contractor: supplying labour to only 1 person – little control of how they work or when they work = some protections. describes a person who performs work for reward, but whose contract defines them as being self employed while simultaneously removing much, if not all, of the autonomy that traditionally accompanies self employment. Independent contractor: autonomous, arranging their own remuneration, holidays and other conditions Employee: s 6(1)(2)(3). means “a person… employed by an employer to work for hire or reward,” that is a person performing work under a CL contract of service or a contract of employment. Employed by an employer / an employee can be of any age / people who intend to work are employees/ volunteers are not employees / entitled to holiday pay. Only employees are entitled to minimum wage, to challenge a dismissal through the PG procedure or to form a union to collectively bargain etc. The status of "employee" not only determines if a person is employed under a contract of service, but also acts as the gateway to a wide range of other legal rights, obligations and protections derived from both the common law and statute. Worker: diff status than an employee – some contractors fall under this so some protections. Employers are vicariously liable for the tortious action of an employee committed in the course of employment. Contract of service: employees’ duty to obey all reasonable orders, the employee’s duty of fidelity, and the mutual obligation of trust and confidence. An employee is a person performing work under a CL contract of service or a contract of employment. Contract for service: is a formal, legally binding agreement before a business and a selfemployment individual. self-employed people provide a finite amount of work. Self-

employed people don’t typically gain employment rights/benefits, such as pension schemes, because they are expected to pay for these provisions themselves. PERSONS INTENDING TO WORK: A dismissal can now arise at any time after a "duly concluded contract for employment" has come into effect - whether or not work has actually commenced under the contract Canterbury Hotel etc IUW v The Elms Motor Lodge Ltd [1989] Will apply where employees apply to resume employment under contractual provisions requiring the employer to offer preferential re-employment to former employees, although to some extent this is now also covered by an extended definition of unjustifiable disadvantageous action for the purposes of PGs in s 103(1)(b). It is now clear that for a person to be a "person intending to work" that intention must be objectively manifested in both an offer of employment and its acceptance Tucker Wool Processor Ltd v Harrison [1999] “real nature of the relationship”: s 6(2). S 6(3) must consider all relevant matters "including any matters that indicate the intention of the person" but that "any statement by the persons that describes the nature of their relationship" is not to be treated as determinative. Bryson v Three Foot Six Ltd [2003] EC "the real nature of the relationship can be ascertained by analysing the tests that have been historically applied such as control, integration and the 'fundamental' test." judge Shaw acknowledged that while industry practice may assist "it is far from determinative of the primary question" and that "the ultimate decision in a case such as this depends upon the entire factual matrix" Three Foot Six Ltd v Bryson [2004] CA "the terms of s 6 suggest that a more open-textured inquiry is necessary" Bryson v Three Foot Six Ltd [2005] SC reinstated the decision of the EC, holding that Judge Shaw had not erred in law and has not suggested that the three "customary indicia" were to be applied exclusively, but had "correctly used them, in conjunction with the other relevant matters to which she referred, in an endeavour to determine the real nature of the relationship, as directed by s 6(2)" Autoclenz Ltd v Belcher [2011] the Court made the point that in the case of employment agreements it may be necessary to look behind the terms of contract to see what happens in practice - statements of intention, and particularly those eff...