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Air New Zealand Ltd v Cliff and Anor
CA 200/06
Heard: 19 Feb 2007, Wellington
Judgment Date: 8 May 2007
Court/Authority: Hammond, Chambers, Arnold JJ
Appearances: AH Waalkens QC, KM Thompson ; RE Harrison QC, J Roberts, GJ Luen
COURT OF APPEAL – Application for leave to appeal against an Employment Court Decision – HELD – None of the grounds of appeal gave rise to questions of law – Factual findings open to Employment Court – Employment Court erred in calculation of remedies but error did not justify appeal – Application dismissed
This was an unsuccessful application for leave to appeal an Employment Court decision.
The Employment Court found that the applicant had unjustifiably dismissed the two respondents and awarded the respondents remedies. The applicant sought leave to appeal that decision.
The applicant submitted that the Employment Court set too high a standard for the investigation, that it had failed to consider that the applicant had relied on two distinct reasons for dismissal, and that the Employment Court failed to give individual consideration to the respondents’ claims. Further, that the Employment Court incorrectly assessed remedies and compensated one of the respondents for loss he had not sought.
Held
(1) None of the grounds of appeal gave rise to questions of law meeting the statutory criteria. (para 29)
(2) The Employment Court should not have compensated for loss not sought. Although the Court was clear there was an error in this regard, it did not give rise to a question which should properly trouble the Court. The restricted right of appeal will mean that Employment Court errors go uncorrected from time to time. (paras 25-26)
Comment
(1) In Waitemata District Health Board v New Zealand Public Service Association (cited below), the Court held that, on applications for leave to appeal from Employment Court decisions, it was incumbent on the applicant to identify the precise questions of law which the applicant asserted met the statutory criteria. The applicant did not do that in the present case. It is an important discipline on counsel and the bench, and helps ensure the Court does not exceed its limited jurisdiction under s214 Employment Relations Act 2000.
Result: Application dismissed (leave to appeal) ; Costs in favour of respondents ($2000 each plus disbursements)
Statutes considered:
ERA s103A
ERA s124
ERA s214
ERA s214(3)
Court of Appeal (Civil) Rules 2005 R27(3)
Cases referred to in judgment:
Cliff v Air New Zealand Ltd [2006] 1 ERNZ 694
Northern Distribution Union v BP Oil New Zealand Ltd [1992] 3 ERNZ 483 (CA)
Waitemata District Health Board v New Zealand Public Service Association [2005]
ERNZ 1058 (CA)
W & H Newspapers Ltd v Oram [2001] 3 NZLR 29 (CA)
Other workers/site names: Groom
Pages: 2
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CIV 2005-485-1750
Heard: 28 Feb 2007, Wellington
Judgment Date: 14 Jun 2007
Court/Authority: France, J ; S Ineson ; A Trlin
Appearances: G Malone ; C Rodgers , J Ryan
HIGH COURT – Sex discrimination – Victimisation – ss 22, 66 Human Rights Act 1993 – Whether woman appointed to lower paid position on basis of gender – Whether higher and lower paid positions substantially similar – Whether woman’s partner victimised because of woman’s complaint – HELD – Positions were substantially similar – First respondent discriminated against – Second respondent victimised – Fish trimmer
This was a partially successful appeal and successful cross-appeal of a Human Rights Review Tribunal decision which held that two positions were not substantially similar. However, the first respondent was appointed to the lower paid position on the basis of gender and her partner had been victimised.
The first respondent was employed by the appellant as a fish trimmer in 1999 and 2000. Women were predominantly employed as fish trimmers and men as fish filleters, which was a higher paid position.
Filleting involved: making two filleting cuts in a whole fish; using and maintaining two or more knives; and, putting an average of 30kg of fish in a bin which was then lifted onto a belt. Filleters’ conditions involved exposure to cold running water and the position was less sociable than trimmers’. A trimmer’s task was to remove imperfections in the fillet and put the perfected fillets in bins of about 7.5kg which were then lifted. The work environment was cold but had less exposure to cold running water.
The first respondent alleged she was appointed a fish trimmer rather than a filleter because she was a woman. After that allegation was made, the first respondent’s partner (the second respondent) was not re-employed by the appellant for the 2001 season.
The Human Rights Commission bought a case before the Human Rights Review Tribunal submitting the first respondent suffered gender discrimination relying on s22(1)(b) Human Rights Act 1993 (“HRA”) and the second respondent was victimised in terms of s66 HRA.
The Tribunal held that: (i) filleters and trimmers were not doing substantially the same work as the term was used in s22(1)(b) HRA; (ii) the first respondent was allocated to be a trimmer rather than a filleter on the basis of gender in breach of s22(1)(a) HRA; and, (iii) the second respondent suffered victimisation.
The appellant appealed the second and third findings. The appellant submitted the Tribunal’s finding for separate liability on job allocation could not stand as it was not pleaded as a stand-alone breach under s22(1)(a) HRA.
The respondents submitted the positions were substantially similar, the first respondent had suffered discrimination and that the second respondent had been victimised.
Held
(1) The core task of the filleter and the trimmer was to turn whole fish into saleable fillets. Each played a role using a knife; both tasks required minimal initial training, and were performed more expertly with experience. The evidence left little doubt that at busy times both worked under pressure. The variations in the roles did not alter the essential similarity. In terms of s 22(1)(b) HRA the tasks were essentially similar. (para 43)
(2) The plaintiff was not required to prove the existence of other available positions at the time the first respondent was appointed. Without such evidence the first respondent’s claim was harder to prove, but the Court was satisfied that the evidence discharged that onus. It was open to the Tribunal to conclude that first respondent was allocated to a trimmer job because she was a woman. (paras 48, 51)
(3) The jobs were substantially similar, and the reason the first respondent was receiving less money was because she was allocated to the lesser paying one because
she was a woman. The appellant did not directly pay her less because she was a woman, but discrimination need not be deliberate. The first respondent had suffered
disadvantage, namely, she received less money for similar work to that undertaken by filleters. The reason she received less money was because she was made a trimmer,
and the reason she was made a trimmer was because she was a woman. (para 52)
(4) The first respondent’s partner had worked the previous two seasons and there was no criticism of his efforts. A change in 2001 to being unable to be re-employed was very difficult to understand, and the Tribunal’s conclusions, with respect, were almost inevitable. The appellant had not persuaded the Court that different inferences should be drawn from the evidence. (para 60)
(5) There should not have been a separate finding on job allocation, but it was pyrrhic given the above conclusions. (para 68)
Result: Appeal granted in part ; Cross-appeal granted ; Costs in favour of respondents (quantum to be fixed by Registrar)
Statutes considered:
Human Rights Act 1993 s22
Human Rights Act 1993 s22(1)(a)
Human Rights Act 1993 s22(1)(b)
Human Rights Act 1993 s66
Human Rights Act 1993 s123
Cases referred to in judgment:
Director of Human Rights Proceedings v New Zealand Thoroughbred Racing Inc
[2002] 3 NZLR 333; (2002) 6 HRNZ 713 (CA)
Nais v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 80
ALJR 367; (2005) 223 ALR 171 (HCA)
Other workers/site names: Edwards
Pages: 3
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Kiwikiwi v Maori Television Service
AC 55/07
Heard: 24, 25 Sep 2007, Auckland
Judgment Date: 2 Nov 2007
Court/Authority: Shaw J
Appearances: J Minto ; J Latimer, B Edwards
APPLICATION FOR DECLARATION OF EMPLOYMENT STATUS – Jurisdiction – Whether employee or independent contractor – No written agreement – Plaintiff worked fluctuating rostered hours – HELD – Plaintiff not independent contractor – Absence of written agreement critical to decision – Fluctuating rostered hours did not alone deprive plaintiff of employee status – Teleprompter
This was a successful application for a declaration as to employment status.
The plaintiff was employed as a teleprompter by oral agreement working fluctuating rostered hours. He was paid an hourly rate and submitted invoices setting out the hours worked. He supplied his IRD and bank account numbers but was not registered for GST. There was no discussion about the nature of the agreement. When not working as a teleprompter he was, at times, requested to perform other administrative
duties. He worked between 30 and 40 hours sometimes 6 or 7 days a week. He worked only for the defendant apart from some shearing over the summer when there was little rostered work available. After a number of months the plaintiff was given a role description but no written contract.
The plaintiff sought a declaration as to his employment status. He submitted he was an employee.
The defendant submitted he was a contractor. The defendant alleged the plaintiff was free to attend to his tasks as he saw fit according to the flexible rostering system and was not subject to control by the defendant.
Held
(1) The plaintiff was required to comply with set rosters and was not a free agent to come and go as he pleased. The role profile he was given was prescriptive both as to function and to standards. When the plaintiff’s standards allegedly slipped, the defendant required him to undergo re-training. (para 35)
(2) The invoices the plaintiff rendered for payment each fortnight were not conclusive of employment status. The plaintiff presented as a person of considerable naivety about taxation and other business matters. The invoices could not be taken as his acquiescence to being a freelancer or self-employed contractor. (para 39)
(3) The plaintiff brought no experience or skill to the position. He learned on the job. He used only the equipment supplied by the defendant. The plaintiff took no financial risk with his own capital in the course of his engagement and could not alter his profits by changing his work habits. (para 40)
(4) Teleprompters were a small but important cog in the larger wheel of television production. If there was no teleprompter there was no script for a presenter to read. The position was not an adjunct which the television station could do without. It was an integral part of the production process. (para 42)
(5) It could not be said that in the industry it was such common knowledge that all teleprompters were engaged as freelancers that when the parties entered into a relationship they could be taken to have agreed that the plaintiff would be a freelancer. Industry practice did not assist in the determination of status. (paras 45, 46)
(6) The plaintiff was not an independent contractor. The absence of a written agreement was critical to that conclusion. If an organisation was entering into an agreement with an independent entity it was to be reasonably expected that such an agreement would be formalised in writing to acknowledge and name the contractor and to set the parameters of the contractual arrangements being entered into. (para 47)
(7) Many employees were employed on shift work or rostered hours and were subject to fluctuations in their hours of work by seasonal requirements or fluctuations in production demand. That factor alone did not deprive them of their employee status and deprive them of all of the protections and responsibilities of the employment relationship which are embodied in the Employment Relations Act 2000 and associated legislation. (para 48)
Result: Application granted ; Declaration accordingly ; Costs reserved
Statutes considered:
ERA s6
ERA s6(2)
Cases referred to in judgment:
Bryson v Three Foot Six (No 2) [2005] ERNZ 372
McGreal v Television New Zealand Ltd AC 3/07, 5 February 2007
Pages: 2
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The New Zealand Airline Pilots' Association Industrial Union of Workers Inc v Air New Zealand Ltd
SC 91/2006
Heard: 13 Jun 2007 - 14 Jun 2007 (2 days) Wellington
Judgment Date: 14 Nov 2007
Court/Authority: Elias CJ, Blanchard, Tipping, McGrath and Anderson JJ
Appearances: RE Harrison QC, R McCabe ; CH Toogood QC, KM Thompson, TP Cleary, JL Verbiesen
SUPREME COURT – Collective employment agreement – Statutory interpretation – Holiday entitlement – Appeal against Court of Appeal Decision – Whether Court of Appeal had erred in holding that an agreement under s 44(2) Holidays Act 2003 transfers public holiday to another day – Whether under collective agreement pilots rostered to work on days defined as public holidays under s 44(1) Holidays Act 2003 must be paid at time and a half – Cross-appeal – Whether Court of Appeal had erred in holding that s 44(2) required, in relation to any transferred public holidays, observance of specified public holiday on particular identifiable day – HELD – Not a valid s 44(2) agreement – Pilots entitled to time and a half if work on public holiday – Appeal and cross-appeal dismissed - Pilots
This was an unsuccessful appeal and cross-appeal against a Court of Appeal decision (Air New Zealand Ltd v New Zealand Airline Pilots’ Association IUOW Inc [2006]
ERNZ 956) which held that (i) if an employer agreed to a request to swap a specific public holiday for another day Parliament had not intended to impose an obligation to
pay the employee time-and-a-half on the public holiday; and (ii) An agreement under s44(2) Holidays Act 2003 referred to a specified public holiday being observed on another day thus transferring the rights arising from a public holiday.
The parties had agreed to a collective employment agreement (“the CEA”) in August 2002 thus predating the Holidays Act 2003 (“the 2003 Act”). The CEA provided that pilots employed by the respondent airline were rostered to work on some, but not all, of the 11 public holidays per year specified in s 44(1) of the 2003 Act. In return, the pilots received 11 days’ additional leave regardless of the number of public holidays they actually worked. A dispute arose over whether the CEA complied with the 2003 Act.
The respondent submitted that pilots who worked on a public holiday had agreed to observe the public holiday on one of the eleven additional days leave. Therefore, the additional day was substituted for the public holiday and those who worked on the public holiday were not entitled to payment of time and a half. The appellant submitted that there was no such transfer and the alternative holiday provisions under s 56 of the 2003 Act applied.
Held
(1) (per Blanchard, Tipping and McGrath JJ) The principal question was whether s 44(2) should be read as having a definitional effect. If Parliament had meant to achieve that outcome it made its point (an important one at that) most elusively. If Parliament was intending to set up two materially different consequences for those who work on a s 44(1) day, it would have done so more clearly and directly. The answer must be that Parliament did not intend to achieve the outcome which the respondent’s argument ascribed to it. In short, the scheme of the Act did not suggest that a s 44(2) agreement removed public holiday status from a s 44(1) day. (para 55)
(2) It seemed most unlikely that Parliament meant to set up a regime under s 44(2) whereby employers who obtained the agreement of their employees to observe the public holiday on another day could thereby avoid paying time and half for work on a s 44(1) day. This would be a surprising method of effectively allowing pro tanto ‘contracting out’. (para 56)
(3) The favoured approach is of greater simplicity and certainty than the alternative. Acceptance of the respondent’s argument could well lead to practical difficulties. (para 59)
(4) (per Elias CJ) The collective agreement between the respondent and its pilots was not an agreement under s 44(2) that the employee would observe the public holiday on another day. Such an agreement is one which redefines the public holiday itself. The collective agreement was not such an agreement. It provided for work on a day that was a public holiday. Pilots who work on a public holiday do so either because they have been directed to work under the power given to the employer in the employment agreement or because they agree to do so. In either case they are entitled to the compensation provided by the legislation for loss of the public holiday. (para 5)
(5) Confining ‘public holidays’ to those identified in s 44(1) is contrary to the scheme and meaning of the Act. It makes s 44(2) redundant unless the strained view is taken that it is necessary to empower the parties to agree if working on s 44(1) days is to be unlawful. It leads to contorted explanations of the legislative scheme. Construing s 44(2) to allow employer and employee to substitute another day as a public holiday for one identified subs (1) is the least artificial and most convenient meaning. (para 15)
(6) (per Anderson J) Section 44(2) is clearly definitional in character. Its purpose is to substitute a day defined in s 44(1) with a day defined by agreement. When an employee agrees to observe a s 44(1) public holiday on another day then as between the employer and employee it ceases to be a public holiday and the observed day becomes the public holiday instead. There is, in effect, a deeming. This conclusion is entirely consistent with the view of the Select Committee that the Bill gave employers and employees the flexibility to observe alternative days as public holidays. (paras 107-109)
(7) The work was not carried out pursuant to a s 44(2) agreement. His Honour identified six implied requirements of a valid agreement pursuant to s 44(2) of the 2003 Act. The collective agreement in the present case did not meet all those requirements. (paras 110, 116-117)
Comment
(1) (per Anderson J) The Employment Court was of the same view as those expressed in this decision. It is a view that employers, employees and the Department of Labour accept is suitable to the needs of all and consistent with the Act. The contrary view favoured by the majority in this case will cause some concern amongst those who would be affected by such an interpretation. Employment agreements relating to shift work may not be acceptable to employers in the future, because of the additional cost to them. (para 115)
Result: Appeal dismissed ; Cross-appeal dismissed ; Order of Court of Appeal remitting the proceeding to the Employment Court stands ; Costs in favour of appellant ($25,000) plus disbursements ; Order for costs made by Court of Appeal stands.
Statutes considered:
Factories Act 1908 s35
Holidays Act 1981 s7A
Holidays Amendment Act 1991
Holidays Act 2003 s3
Holidays Act 2003 s 5
Holidays Act 2003 s6
Holidays Act 2003 s6(3)
Holidays Act 2003 s43
Holidays Act 2003 s43(a)
Holidays Act 2003 s43(b)
Holidays Act 2003 s44(1)
Holidays Act 2003 s44(1)(i)
Holidays Act 2003 s44(1)(k)
Holidays Act 2003 s44(2)
Holidays Act 2003 s44(3)
Holidays Act 2003 s44(4)
Holidays Act 2003 s48(2)(b)
Holidays Act 2003 s48(2)(b)(i)
Holidays Act 2003 s50(1)
Holidays Act 2003 s56(1)(b)
Holidays Act 2003 s56(2)(b)
Holidays Act 2003 s81(2)
Holidays Act 2003 s44
Holidays Act 2003 s46
Holidays Act 2003 s47
Holidays Act 2003 s48
Holidays Act 2003 s49
Holidays Act 2003 s50
Holidays Act 2003 s56
Holidays Act 2003 s57
Holidays Act 2003 s58
Holidays Act 2003 s59
Holidays Act 2003 s81
Industrial Conciliation and Arbitration Amendment Act 1965
Interpretation Act 1999 s5(1)
Labour Relations Act 1987 s173
Public Holidays Act 1910 s2
Public Holidays Act 1955
Supreme Court Act 2003 s13
Words and phrases: Public holiday
Cases referred to in judgment:
Air New Zealand Ltd v New Zealand Airline Pilots’ Association IUOW Inc [2006]
ERNZ 956 (CA)
Dew v Ryan (1911) 30 NZLR 704 (SC)
Heinz Wattie’s Ltd v National Distribution Union Inc [2005] 1 ERNZ 12.
New Zealand Airline Pilots Association Inc v Air New Zealand Ltd [2005] 1 ERNZ
180 (EC)
Telecom Networks and Operations Ltd v Vevers [1993] 3 NZLR 425.
Pages: 4
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Chief Executive of the Department of Corrections v Imo
AC 57/07
Heard: 10 Sep 2007 - 11 Sep 2007 (2 days) Wellington
Judgment Date: 14 Nov 2007
Court/Authority: Shaw J
Appearances: K Elkin, N Belton ; B Quarrie
DE NOVO CHALLENGE TO DETERMINATION OF EMPLOYMENT RELATIONS AUTHORITY – Unjustified dismissal – Poor performance – Serious misconduct – Defendant disclosed own drinking and driving and frustration towards employer to offenders – Plaintiff alleged statements caused loss of trust and confidence warranting dismissal – HELD – Statements inappropriate but not serious misconduct – Defendant entitled to have acknowledged performance issues addressed rather than being summarily dismissed – Dismissal unjustified – Challenge dismissed – Criminogenic facilitator
This was an unsuccessful challenge to a determination of the Employment Relations Authority which held that the defendant’s dismissal was unjustified.
The defendant was employed by the plaintiff as a facilitator of intervention programs for offenders. The defendant initially received largely positive feedback but, after a change in supervisor, his new supervisor expressed concerns to the regional program delivery manager about aspects of the defendant’s performance. The manager arranged a meeting with the defendant. On the morning of the intended meeting the defendant, during facilitation of the program, disclosed to offenders that he had consumed alcohol and then driven home (“the first statement”). This was not known or discussed at the afternoon meeting which focused on the supervisor’s previous criticisms of the defendant. The following morning the defendant, during facilitation of the program, expressed frustration at the plaintiff (“the second statement”).
When both statements came to light a disciplinary investigation was commenced which resulted in the plaintiff dismissing the defendant for serious misconduct.
The defendant brought a successful personal grievance in the Employment Relations Authority alleging unjustified dismissal. The plaintiff challenged that determination.
The plaintiff alleged that the defendant did not accept any wrongdoing, that the defendant had failed to accept correction and, because of the breakdown of trust and
confidence, he could no longer be employed by the plaintiff in any capacity.
The defendant submitted that although the statements he made were inappropriate they were not such as to cause a serious erosion of trust and confidence.
Held
(1) The present case was a case where the line between poor performance and serious misconduct was far from clear. The question of where any particular behaviour by an employee falls on the spectrum between the two extremes of poor performance and serious misconduct will depend on a number of factors. These include but are not limited to whether the employee’s acts were deliberately inimical to the employer’s interests; the effect of the employee’s actions on the employer’s business; and whether an employee could reasonably have been given an opportunity to mend his ways and show that he can do the job. All of these aspects must be examined in the light of the circumstances of the parties at the time. (paras 48-50)
(2) Although the first statement was inappropriate, the defendant wrongly believed that an honest disclosure of his personal lapses could assist the offenders. That behaviour could not be classified as serious misconduct. It was not deliberately intended to undermine. The defendant misconducted himself in revealing in the second statement his anger with his employer about the criticisms it had made of him. However, those remarks were not so serious as to justify the plaintiff’s belief that there was a complete breakdown in the relationship between them. (paras 53, 57)
(3) A fair and reasonable employer: (i) would have made inquiries about the basis for the supervisor’s concerns and the reason for the changes in the defendant’s performance; and (ii) would have investigated whether there was need for an
independent supervisor to assess the situation. It was incumbent upon the plaintiff to openly air those concerns with the defendant and reasonably expect his performance to improve. If it had taken that step when alerted to the performance concerns, it was quite possible that the tensions which rapidly grew between the supervisor and the defendant could have been diffused before the defendant reached the state of high stress which he was in by the time he made the statements. (paras 68-70)
(4) The defendant had a good record of previous service to the plaintiff. He had a lapse in judgment and performance resulting from a change of supervisor and her requirement of different and (to him) unexplained standards. The defendant was entitled to have his acknowledged performance issues addressed rather than being summarily dismissed. His dismissal was unjustified. (paras 75, 76)
(5) The defendant had a good and harmonious relationship with his colleagues except for his supervisor. He was more than willing to work with her although he accepted some work may have to be done on building their relationship. Given the size of the plaintiff and the defendant’s previous experience, reinstatement to a position no less favourable than that which he held at the time of his dismissal would not be impracticable. That was not to say that the defendant should necessarily be reinstated to precisely the same position in the same location. (paras 80, 82)
(6) The defendant was entitled to any loss of wages since the date of his dismissal until the date of his reinstatement. However, he contributed to a considerable extent to the position he found himself in by his unwise and intemperate comments whatever the motivation for them. For that reason there would be no order for compensation. (paras 84, 86)
Result: Challenge dismissed ; Reinstatement ordered ; Reimbursement of lost wages (quantum to be determined by parties) ; Compensation for humiliation declined to reflect contributory conduct ; Costs reserved
Statutes considered:
ERA s103A
ERA s125
Cases referred to in judgment:
Air New Zealand v Hudson [2006] 1 ERNZ 415
Honda New Zealand Ltd v New Zealand Shipwrights Union [1990] 3 NZILR 23
Polkey v A E Dayton Services Ltd [1987] 3 ALL ER 974 (HL)
W & H Newspapers Ltd v Oram [2000] 2 ERNZ 448
Pages: 3
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Coy v Commissioner of Police
CC 23/07
Heard: 14 Nov 2007, Christchurch
Judgment Date: 19 Nov 2007
Court/Authority: Colgan CJ
Appearances: JS Fairclough ; A Martin, L Fong
PRACTICE AND PROCEDURE – Application by defendant to strike out parts of statement of claim – Application by plaintiff for leave to extend time to raise personal grievances – Defendant sought to strike out claims and evidence concerning events outside 90 day periods and dating back to 1994 – When plaintiff raised personal grievance – HELD – Historical evidence relevant to justiciable grievances admissible – Plaintiff required to re-plead certain matters – Plaintiff raised grievance in second communication not through later detailed submissions – Applications dismissed – Police constable
This was an unsuccessful application by the defendant to have certain claims and evidence struck out of the statement of claim. This was an unsuccessful application by the plaintiff to extend the time to raise certain grievances.
Between 1993 and 2003 the plaintiff alleged she was unjustifiably disadvantaged in her employment as a constable. In early December 2002 she told an Inspector she was “going ahead” with a personal grievance. On 22 December 2002 the plaintiff sent the defendant a letter stating “I wish to formally advise you that I intend to proceed with personal grievance”. The grievance was to be based on a number of stated grounds including harassment and victimisation. The letter concluded: “My submission is currently being prepared and I anticipate it will be forwarded to you…after…professional advice has been obtained”.
In March 2003 the plaintiff sent the defendant a 14-page letter detailing her alleged grievances dating back to 1994. Another Inspector then wrote to the plaintiff noting that certain matters raised fell outside the 90 day period. The plaintiff raised a further grievance on 8 May 2003 before she disengaged from the police and raised a further personal grievance (unjustified constructive dismissal) in November 2003.
The defendant sought to strike out a number of claims in the statement of claim alleged to fall outside the relevant 90 day periods.
The plaintiff submitted that the defendant had consented to the late raising of her grievances. Shortly before the present hearing she applied for leave to extend time for
raising her grievances to the extent the Court may conclude they were out of time.
Held
(1) Events going back even to 1994 may be relevant to the establishment of a case of constructive dismissal. So while the plaintiff was not entitled to rely upon events that occurred prior to 90 days before she raised the relevant personal grievances as independent disadvantage grievances, neither should she be prevented from adducing
any evidence at all about these events to support her justiciable grievances. Such evidence of events at that time will have to be relevant to the grievances that remain alive. (para 6)
(2) Read in conjunction with the oral statements to the Inspector in early December 2002 about her intended personal grievance, the letter to the defendant of 22 December 2002 met the test in s114(2) Employment Relations Act 2000 (“ERA”) for the raising of a personal grievance. It followed that the plaintiff was entitled to raise as grievances only events that had occurred in the previous 90 days. (para 15)
(3) The defendant, having been notified of the plaintiff’s concerns including recent maltreatment, was obliged to deal with the plaintiff’s prospective welfare as a serving police officer. That did not amount to consent to the raising of grievances that were otherwise statute barred. (para 20)
(4) The events that were referred to in the plaintiff’s memorandum dated 8 May 2003 that occurred within the 90 days preceding that date may be the subject of a personal grievance. Likewise, the plaintiff was entitled to bring as an unjustified constructive dismissal grievance claim, the complaints she raised with the defendant in November 2003. Although the Court declined to strike out causes of action or potential evidence, the plaintiff must nevertheless re-plead her claims within the parameters outlined. (paras 24, 26)
(5) The events to which the plaintiff deposed did not meet the exceptional circumstances test. The application for leave to raise personal grievances out of time
under s114(3) ERA was refused. (paras 23, 27)
Result: Applications dismissed ; No order for costs
Statutes considered:
ERA s114
ERA s114(2)
ERA s114(3)
ERA s114(4)
ERA s115
Employment Court Regulations 2000
Cases referred to in judgment:
Auckland Shop Employees Union v Woolworths (NZ) Ltd [1985] 2 NZLR 372
Creedy v Commissioner of Police [2006] 1 ERNZ 517
Jacobsen Creative Surfaces Ltd v Findlater [1994] 1 ERNZ 35
Jeffries v Adis International Ltd AC 69/06, 7 December 2006
Phillips v Net Tel Communications [2002] 2 ERNZ 340
Pages: 2
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Maritime Union of New Zealand Inc & Ors v TLNZ Ltd & Anor
AC 51A/07
Heard: 10, 11, 12, 13, 14, 19 Sep 2007, Auckland
Judgment Date: 21 Dec 2007
Court/Authority: Colgan CJ
Appearances: S Mitchell, H White ; CH Toogood QC & N Dines,
PROCEEDINGS REMOVED FROM EMPLOYMENT RELATIONS AUTHORITY – Application for declarations and permanent injunction – Drug and alcohol testing policy – Applied to all staff – Unilateral introduction of policy – Good faith – Whether intended policy would breach collective agreement – Whether intended policy would breach consultation obligations in collective agreement – Whether requirement to participate in policy would be a lawful and reasonable direction – Employers duty under Health and Safety in Employment Act 1992 to take all practicable steps to eliminate potential hazards – Safety sensitive work – Sampling methodologies – HELD – Intended introduction of policy did not breach collective or individual
agreements or consultation obligations – Requirement of union members to participate in policy a lawful and reasonable direction – Applications dismissed – Stevedores
This was an application by the plaintiffs removed from the Employment Relations Authority for a permanent injunction and declarations against the defendants, seeking to restrain it from implementing aspects of its recently announced policy on drug and alcohol testing.
The first and second defendants were associated stevedoring companies operating at ports in Tauranga and Auckland respectively. The first plaintiff had as members many of the first and second defendants’ employees including the second plaintiffs at Auckland and the third plaintiffs in Tauranga.
The defendants’ intended to introduce a drug and alcohol policy (“the policy”) which was to apply to all staff. The policy aimed to improve safety and to ensure that staff were not exposed to unacceptable workplace risks. It provided for testing in various circumstances and mandatory rehabilitation following a positive result. The relevant collective agreements also dealt with the use of drugs and alcohol. Extensive consultations progressed between the first plaintiff and the defendants with each side tabling its own policy. The defendants considered and in some cases included union suggestions in the policy. The first plaintiff was anxious to secure a degree of union ‘ownership’ of the policy in light of its own pre-existing policy. There was disagreement over the accuracy of oral fluid testing for drugs compared with urine testing. The parties were unable to agree upon a policy and the first plaintiff advised its members to refuse to cooperate with the defendants’policy.
Following this, the first plaintiff union proceeded to belatedly include a claim in the bargaining for the policy to be bargained over and agreed between the parties. The first defendant however intended to introduce the policy unilaterally. This impasse had delayed collective bargaining and led to the present proceedings.
The plaintiffs argued that the defendants had failed to abide by the legal principles established in NZ Amalgamated Engineering Printing and Manufacturing Union v Air New Zealand (cited below; “the Air New Zealand case”), that circumstances had changed since the Air New Zealand case, that new principles should be established or that the policy was unreasonable despite the Air New Zealand case. Second, that drug testing did not reliably determine impairment, the policy failed to take into account available expertise regarding workplace detection and that more reliable methods of risk identification were overlooked by the defendants. Third, that the unilateral introduction of the policy breached the obligations of consultation under the collective agreements and good faith under statute. Fourth, that the collective agreement covering the workers at Tauranga required health and safety rules and procedures to form part of the agreement. Fifth, that the reasonableness of the policy should be determined by s 103A of the Employment Relations Act 2000. Finally, that the failure to obtain union approval for the policy would compromise its purpose because such a policy could only be truly effective if all parties “bought into” it.
The defendants argued the issues raised were questions of managerial prerogative.
Held
(1) The policy did not allow for any scientific assessment of impairment per se but it did provide for an assessment of signs of impairment, albeit by human, as opposed to scientific, means. Common-sensically, supervisors and work colleagues would be expected to be alert to manifest symptoms that may indicate impairment of functioning. Testing alone may not be a completely reliable assessment of impairment, either as to its degree or causation. But preceded by and combined with human observations and appropriate inquiries, testing would assist in an assessment of the fact and degree of impairment and, most importantly, a probable reason for it and a prognosis for future impairment. (para 60)
(2) Ultimately, in law and by contract, the obligation for implementing such policies and their contents rested with the employer. Put bluntly, it was the employer that would stand figuratively in the dock in a prosecution for a breach of the Health and Safety in Employment Act. So it was the party that would bear ultimate responsibility for compliance with the legislation that must also be responsible ultimately for doing what it must and can to ensure statutory compliance not to mention to attempt to ensure its freedom from liability. (para 74)
(3) The plaintiffs’ real complaints of non-compliance with the consultation obligations at issue in the present case were ones of refusal of agreement rather than of consultation. The length of the consultative process, the numbers of meetings, the discussions of the object and content of the intended policy, the correspondence between the parties on these topics, and the employers’ preparedness to alter aspects of the policy as suggested by the union, all pointed together to a sufficient consultation, both statutory and contractual. The initial formulation of the policy by the employers did not mean there was a failure of consultation. The test was not the provenance of the proposal but, rather, in these circumstances, the preparedness of the proposer to consider open-mindedly alternatives and to articulate reasonably disagreements with those. (para 75)
(4) The union proposal for oral fluid screening for drugs was based soundly on independent scientific evidence. The employers’ reasons for refusing to agree to the union’s position included that they wished to have a single policy applicable to their entire diverse workforces irrespective of location, union membership, or job classification. An employer was entitled to a consistent policy across all staff, union, non-union and other-union staff. It was a valid consideration for the employer. The defendants’ reasons for rejecting a policy owned (solely or jointly) by the first plaintiff were sound and reasonable. Having consulted about this issue, the defendants were entitled in law to decline to agree with the union’s proposal for ownership of the policy. (paras 77 – 79)
(5) The employers’ preferred method of achieving their objectives was by urine testing for drugs. Urine testing is governed by the relevant Australia/New Zealand Standards and the drug testing methods in the policy complied with this. The Standard had cut-off levels for urine testing that had been mathematically designed to minimise false positives and false negatives. Urine screening and confirmatory testing conducted under the Standard in an accredited laboratory was reliable to a high degree producing results that would, all else being equal, withstand legal challenge. The employers rejected oral fluid testing on the basis of expert advice and its own research that were substantially confirmed in evidence. (paras 89-93)
(6) In principle, common law tests change over time and reflect current situations and practices. However, the statutory test addressing justification for dismissals and disadvantages in employment in s 103A Employment Relations Act 2000 did not apply to other considerations that were non-statutory. This did not necessarily create a double standard with different tests applying to declaratory relief before a personal grievance may arise and to ex post facto justification. The implementation of a work policy and its procedures was not the same thing as, and did not necessarily connote that there would be, a personal grievance or personal grievances. The reasonableness of the common law test was an amalgamation of factors, some of which may have been similar to, or even the same as, those for assessment in justification of a personal grievance but were broader than that. (para 98)
(7) So-called “buy in” must, if not amounting to agreement to a proposed policy, come close to it. It was often the case that such “buy in” could only be achieved over a period of time after implementation so that the policy could be seen and evaluated in practice (and, if necessary, amended), as opposed to theory. Conservatism and resistance to change were natural human traits and no less in employment relations. However, employee agreement to such a policy was best practice rather than pivotal. Taken together the company’s decision to implement the policy without universal advance “buy in”, was both reasonable and justified. Ultimately, employer initiatives may be, and must be, taken. (paras 107 – 108, 112, 114)
(8) The obligations of good faith in s4 of the Employment Relations Act 2000 and consultation under the collective agreements in respect of the content and process of introduction of the drug and alcohol policy had also been met. The agreements, as informed by the Health and Safety in Employment Act 1992, and the legislation itself, permitted and indeed mandated the introduction of health and safety policies ultimately unilaterally. Although there were requirements to consult with employees and relevant unions and to do so in a sufficient and open-minded manner as was consistent with the nature and effect of the intended policy, agreement was not required and consultation was not without reasonable temporal limits. (para 121)
(9) Having reserved expressly to the employer the right to make health and safety rules and procedures as may be reasonable and not inconsistent with the collective agreement for the maintenance of good conduct by its employees, it was difficult conceptually to see how, in the absence of agreement, such procedures could be a part of a collective agreement. If drugs and alcohol policies and procedures had been bargained for and incorporated into collective agreements it would not be open to the Court to assess their reasonableness. Where, however, a policy was implemented unilaterally, directions given to employees pursuant to such a policy must meet the twin tests of lawfulness and reasonableness. These were not issues of managerial prerogative. (paras 18, 125–127)
Comment
(1) There has been very little litigation in New Zealand about the reasonableness of drug and alcohol testing regimes in employment. Apart from the Air New Zealand case in 2003 – 2004, this was only the second head-on challenge to the reasonableness of testing procedures of which the Court is aware. In spite of this, the evidence established that drug and alcohol policies including testing regimes were now widespread in New Zealand including within unionised workforces. Although not the subject of this case, the evidence tended to suggest that pre-employment drug and alcohol testing during employment was now widespread, perhaps even standard in many sector or enterprises. (para 73)
Result: Applications dismissed ; Costs reserved
Words and phrases: ERA s 4 ; ERA s4(1) ; ERA s4(1)A ; ERA s4(1)A(a) ; ERA s4(1)A(b) ; ERA s4(1)A(c) ; ERA s4(1)A(c)(i) ; ERA s4(1)A(c)(ii) ; ERA s4(2) ; ERA s4(3) ; ERA s4(4) ; ERA s4(5) ; ERA s53 ; ERA s103A ; HSE s2 ; HSE s2A ; HSE s6 ; HSE s19 ; Human Rights Act 1993 ; Privacy Act 1993
Cases referred to in judgment:
BHP Iron Ore Ltd v CMETSWU, WA Brach (1998) 82 IR 162
Cammish v Parliamentary Services [1996] 1 ERNZ 404
Makeham v New Plymouth District Council [2005] ERNZ 49
NZ Amalgamated Engineering Printing and Manufacturing Union v Air New Zealand
Ltd [2004] 1 ERNZ 614.
Pioneer Construction Materials Pty Ltd v Transport Workers’ Union of Australia,
Industrial Union of Workers, Western Australian Branch (2003) WAIRC 10049
Simpsons Farms Ltd v Aberhart [2006] 1 ERNZ 825
Tranz Rail Ltd v Department of Labour [1997] ERNZ 316
Other workers/site names: Nee Nee, Toleafoa, Smart ; TLNZ (Auckland) Ltd
Pages: 44
[974385]
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