Posted on: Feb 23, 2015

The Employment Court agreed with the Authority in penalising the misleading and deceptive actions of a charitable trust that misled the unions it was bargaining with so that they believed government funding constrained it from agreeing to a greater increase in wages. It also agreed that the trust had conferred an unlawful preference upon non-union employees by giving them an increase backdated beyond that given to union members.

Where the Court went further was in making a compliance order to compensate union members for the difference between what they had been paid for the relevant period and what they would have been paid if they had been non-union employees. The trust had argued that the only remedy for the conferment of an unlawful preference was s 10 of the Act (meaning that the contractual arrangement bringing it about had no force). The unions had not pursued this because it would mean depriving the non-union employees of pay rather than addressing the wrong accorded to their members.

The collective agreement covering the union members prohibited the employer from “automatically” passing on the same terms and conditions to non-union employees. The Employment Court disagreed with the Authority on whether this had been breached, saying that the passing on had not been automatic. The trust appeared to have made the process of giving negotiated increases to non-union employees (long observed in this workplace) as detached from the bargaining process as it could possibly be by, for example, inviting them to enter into new individual agreements.

Disclaimer

This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.

Posted on: Feb 23, 2015

The Employment Court has considered — but not resolved — two interesting and important issues relating to the effect on remedies of blameworthy conduct

The first issue was whether a 100% reduction in remedies was in fact permitted by s 124 of the Act (reducing the remedy due to contributing behaviour by the employee).  Chief Judge Colgan considered that there was a “respectable argument” that it was not, but he thought the matter needed to be addressed another time and by a full court.

One element of this argument was the fact that s 103A (the test of justification) now provides that a dismissal or action cannot be unjustified merely because of minor process defects on the part of the employer. That thereby dealt with cases in which the Authority or Court might previously have used s 124 to reduce to nothing remedies that would otherwise be provided to do justice to cases where only minor process defects had occurred.

The second issue was whether the Court or Authority has the power to order reinstatement to a position that was not the employee’s former position or to one less advantageous. A previous judgment of the Court had said that they do have such a power, but Chief Judge Colgan was doubtful as to whether this was so.

The Court held that the Authority had been in error in the case in simply deciding that the grievant was so blameworthy that she would not be entitled to remedies at all. Any reduction for contribution first required the Authority or Court to consider the remedies that would otherwise have been awarded (Harris v The Warehouse Ltd [2014] NZEmpC 188).

Disclaimer

This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.