Cases

Notable cases where Workplace Law Specialists have appeared as counsel include:

Commissioner of Police v Coffey [2014] NZEMPC 194

  • Workplace Law Specialists acted for Mr Coffey, a Business Services Manager for the New Zealand Police, based in Nelson. The position was disestablished in a restructure that occurred in 2012.
  • The Employment Relations Authority (ERA) determined that the restructure was unjustified, finding breaches of both Mr Coffey’s employment agreement and the Employment Relations Act 2000. There were further procedural breaches in the disestablishment of Mr Coffey’s position.
  • Workplace Law Specialists successfully argued that the Police must reinstate Mr Coffey in a position “no less advantageous” than his previous position.
  • Mr Coffey was subsequently offered a position in Otahuhu, South Auckland.
  • Workplace Law Specialists then successfully argued that distance was disadvantageous. The ERA considered that a position may need to be developed which meets Mr Coffey’s existing pay band, skill set and geographical location.
  • The ERA held that while the restructuring was genuine, it was “not carried out properly in regard to Mr Coffey. The ERA ordered reinstatement, lost wages and $15,000 compensation for humiliation, loss of dignity and injury to feelings.
  • The Commissioner of Police appealed to the New Zealand Employment Court (NZEMPC) on the question of whether the ERA was correct in concluding that under the terms of his employment agreement, Mr Coffey was unable to be made redundant without his consent.
  • The NZEMPC found the ERA was correct in concluding that Mr Coffey was unable to be made redundant without his consent. It found that there had never been any agreed variation to the original restructuring and severance provisions incorporated into Mr Coffey’s original agreement. Costs were awarded.

Brent Hutchison v Canon NZ Limited [2014] NZERA Wellington 72.

  • 90 Day Trial
  • Mr Hutchison was advised on his 89th day of working for Canon New Zealand that his employment was being terminated in accordance with the 90 day trial period clause in his employment agreement. Mr Hutchison was paid one weeks’ pay in accordance with his employment agreement which provided that Canon may terminate his employment by giving “one week’s written notice or payment instead of notice”. Termination of his employment was not confirmed in writing until three days after the trial period had concluded.
  • The Employment Relations Authority (ERA) determined that the trial period clause in the employment was defective because s 67B of the Act requires an employer to give an employee notice of termination of employment before the end of the trial period; it does not allow for payment lieu of notice even where that is explicitly mentioned in the trial period clause of the employment agreement. Further, written notice was not provided until after the 90 day period had concluded. Accordingly, Canon’s termination of Mr Hutchison did not comply with the Employment Relations Act 2000.
  • As a result of Workplace Law Specialists’ successful argument that Canon failed to comply with the notice requirements of s 67(B), Mr Hutchison was not precluded from bringing a claim of unjustified dismissal.
  • In an interlocutory judgement issued by Employment Court, Chief Judge Colgan referred to the applicant’s claim as to whether the phrase in the employment agreement “your employment is subject to a trial period of up to 90 days…” meets the requirements of s 67A of the Act. It considered this ground “unique and distinctly arguable”. It was concluded that this phrase did not meet the requirements of s 67A as it did not specify the length of the trial period.

Seymour v Express Couriers Limited DC WN CIV-2011-085-023 [4 May 2012]

  • Workplace Law Specialists acted for Mr Seymour, who was contracted by Express Couriers Limited (ECL) under an owner driver agreement (ODA). ECL terminated the contract after finding traces of cannabis in Mr Seymour’s van, despite Mr Seymour denying the cannabis was his and informing ECL that other people, including a relief driver, had access to his van.
  • Workplace Law Specialists successfully brought a claim for wrongful termination of contract in the District Court, resulting in Mr Seymour being awarded damages.

Bettina Neu v The Vice Chancellor of Victoria University of Wellington [2016] NZERA Wellington 99

  • Workplace Law Specialists acted for Ms Neu, a senior lecturer at Victoria University of Wellington (VUW), who successfully brought a claim for breach of contract and unjustified disadvantage in the Employment Relations Authority (ERA).
  • In May 2014, Ms Neu received a written warning for misconduct. Clause 12, Schedule 6 of the VUW Academic Staff Collective Agreement (CEA) provided that the duration of a warning would not exceed 12 months and would be removed from the employee’s file when no longer current. It was agreed with Ms Neu that if there were no further incidents relating to the warning, the warning would conclude in October 2014. Following a further complaint from a student in September 2014, Ms Neu was engaged in a Performance Improvement Plan (PIP) from approximately February 2015 to October 2015.
  • In September 2015, three students complained about Ms Neu’s behaviour and VUW commenced an investigation into the complaints.
  • Ms Neu received a final written warning in January 2016. This made reference to the May 2014 written warning.
  • Workplace Law Specialists successfully argued that despite Ms Neu’s personal grievance being raised outside of the 90 day period, VUW had impliedly consented to the raising of a personal grievance by objecting to the grounds of the personal grievance but not to the raising of the personal grievance itself.
  • Workplace Law Specialists also successfully argued that VUW had unfairly relied on the 2014 written warning when forming its decision to issue the final written warning, placing Ms Neu at an unjustified disadvantage. The ERA stated that in doing so, VUW breached clause 12 of the CEA. VUW should have completely removed the written warning from all files – it could not simply retain the record on an alternative file (as opposed to Ms Neu’s personnel file) for future consideration.
  • Ms Neu was awarded $2,000.00 for hurt, humiliation and injury to feelings under s123(1)(c)(i) of the Employment Relations Act 2000.

Green Cabs Limited v Sage Siulua CIV-2010-485-1723

  • Workplace Law Specialists acted for Green Cabs Limited who brought successful actions against a former employee, Mr Siulua, for breach of the Fair Trading Act and for the tort of passing off.
  • Following the termination of his employment from Green Cabs, Mr Siulua continued to operate his vehicle, which was painted in Green Cabs’ distinctive green paint, Panatone 368C, as a taxi. Mr Siulua had removed Green Cabs’ signage, and put a sign on the back of the doors stating “This is not a Green Cab”.
  • The High Court summarised the issue as “the fact that Mr Siulua continues to drive a taxi with the plaintiff’s distinctive green paint coat” causing patrons to be confused, if not misled.
  • The High Court found that breach of the Fair Trading Act and the tort of passing off had occurred. It granted Green Cabs an interim injunction, prohibiting Mr Siulua from operating his vehicle as a taxi, effective immediately, until the cab was repainted. As Mr Siulua could not afford the quoted cost of having his cab repainted, Green Cab’s was ordered to pay half the quoted cost of having the vehicle repainted.

Hansaraj v Crest Commercial Cleaning Limited

  • Workplace Law Specialists (then O’Sullivan & Associates) represented Mr Hansaraj in a claim for breach of contract in the District Court.
  • Mr Hansaraj entered in a Master Franchise Agreement (“MFA”) with Crest Commercial Cleaning Limited (“Crest”), the Franchisor, which gave Mr Hansaraj the rights to oversee and co-ordinate commercial cleaning contracts owned by Crest throughout the Hutt Valley and Wairapa area for a ten year term.
  • One year after signing the MFA, Crest cancelled the agreement.
  • Workplace Law Specialists argued that the cancellation was unjustified, and successfully defended Crests’ counterclaims that Mr Hansaraj had breached his contractual obligation to generate a certain amount of income in the first year and was required to pay to Crest, the alleged shortfall.
  • Although the Court did not find that Crest had breached its contract with Mr Hansaraj’s, it did find that Mr Hansaraj had enriched Crest, and was entitled to relief, under section 43 of the Contract and Commercial Law Act.
  • The Court ordered Crest to pay Mr Hansaraj the sum of $27,500.
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formerly O'Sullivan and Associates
New Zealand Law Society
Resolution Institute