The Chief Judge of the Employment Court issued a judgment last week which should send a strong seismic-like wave through the Uber companies and their like, taxi companies, probably the transport industry, and the so-called gig economy in general.

The Chief Judge issued a declaration that four Uber drivers were employees. The Court made it clear that while the judgment does not have immediate legal effect on the broader Uber operations, however it clearly indicates that it could have a broader potential impact on other Uber drivers given the apparent uniformity of the Uber business operation in New Zealand.

The Court explained that the Uber operation works as follows. Riders download the Uber App; they advise Uber (via the App) of where they want to travel to; Uber (via the App) offers the trip to available drivers; an available driver accepts the offer, collects the rider and drives them to their chosen location. Eaters download the Uber App; they select a restaurant and order their food (via the App); Uber (via the App) offers the food pick-up and delivery trip to available drivers; an available driver accepts the offer, collects the food from the restaurant and drives the food to the Eater at their nominated address for delivery. Riders and eaters make payment to Uber; Uber makes payment to the drivers. The five defendants are all separate legal entities but they all operate within the Uber group operation.

The starting point is the Employment Relations Act. In deciding whether or not a worker is an employee or a contractor the Court “must determine the real nature of the relationship”. In doing so, the Court must consider “all relevant matters, including any matters that indicate the intention of the persons” and “not to treat as a determining matter any statement by the persons that describes the nature of their relationship”.

The Employment Court highlighted the need to adopt a purposive approach to determining the status of the drivers, having regard to the applicable legislation and its role in protecting vulnerable workers and ensuring the maintenance of minimum standards. It said that the broader social purpose of the legislative framework must be kept in mind when considering whether a worker is an employee. The Chief Judge said that her task was to ascertain whether the individual is within the range of workers to which Parliament intended to extend minimum worker protections.

The Court accepted that some of the usual indicators of a traditional employment relationship were missing. However, it was found that significant control was exerted on drivers in other ways. These included incentive schemes that reward consistency and quality. Other controls included withdrawal of rewards for breaches of Uber’s standards such as slips in quality levels, measured by user ratings. Read more....

Auckland has a new Mayor – Wayne Brown. The Mayor campaigned on a platform of change.

On the campaign trail Mr Brown promised to take back control of the Council-Controlled Organisations (CCOs) and cut $100 million of ratepayer funding for Eke Panuku and the council's economic development and events arm Tātaki Auckland Unlimited. He said if they can survive on their own, well and good. If not, they will be closed down.

During the election campaign, Brown also said as Mayor he planned to pass a resolution to cut the salary pool of staff earning more than $300,000 by 30 per cent, middle management by 20 per cent and lower management by 10 per cent.

Auckland Transport Chair Adrienne Young-Cooper has already stepped down after she learned that he wanted the Board to resign.

The Chair and Board of Eke Panuku Development have not heeded Mr Brown’s call for their resignations.

Having acted for numerous Boards and Chief Executives, in my experience means calls for change at the governance level which often leads to change at Chief Executive and executive management level. Change for executive management then often leads to change further down the organisation. Change often means restructuring, dismissals or performance management. All usually come with a hefty cost (in both time and money).

Employment law requires an employer to demonstrate two things; a justifiable reason for terminating an employee’s employment and to follow a fair process. A fair process will involve the employer having no pre-determined position. The Mayor has created a problem with taking such a public stand on the changes he wants made.

Board members are appointments, they are not employees. Assuming that the changes are made at Board level, how does that play out at Chief Executive level if big changes are required? The Chair then has effectively five options; work with the incumbent Chief Executive, request the resignation of the Chief Executive, restructure the Chief Executive role, dismiss the Chief Executive for serious performance matters already raised, or performance manage the Chief Executive.

The Mayor must have some dissatisfaction with the leadership and structure of the CCOs given his public statements. He wants change.

The top job comes with a top salary. The new Board cannot simply dismiss the Chief Executive. The Chief Executive is unlikely to resign unless the terms of the resignation are favourable. The starting point is the notice period – usually a lengthy period for a Chief Executive (usually starting at 6 months). The Board may be able to pay out the notice period. If so, it may elect to do so. If not, the Chief Executive can expect to work out the notice period. There is then a lame duck Chief Executive in the role for a lengthy period while a new Chief Executive is recruited. Read more...

Cases of being able to successfully justify a dismissal for reasons of incompatibility between employees are rare.

How does the employer resolve the situation where an employee has a serious breakdown in the relationship where another employee has acted badly, or who is acting badly towards them, despite warnings to stop their bad behaviour, and where attempts to resolve the situation between the two have been unsuccessful?

The starting point is that the onus is on the employer to establish that the employee was substantially responsible in the breakdown, that the relationship was beyond repair and that the dismissal was carried out in a procedurally fair manner.

The cost of not meeting this standard may be high. In the recent appeal to the Employment Court in Ashby v NIWA Vessel Management Limited the Employment Court substantially increased the remedies awarded to the dismissed employee from three months’ wages to 12 months’ wages and compensation from $20,000 to $35,000.

Kim Ashby was employed in 1996 as a cook on a large research vessel operated for NIWA by a subsidiary company. The ship operates two alternating crews with approximately a month on/month off roster. The crews live in confined quarters 24 hours a day, seven days a week at sea. In 2009 Ms Ashby made a formal complaint alleging sexual harassment by the (then) First Mate. Ms Ashby claimed the First Mate made inappropriate comments to her and put inappropriate pictures on her computer. Ms Ashby’s complaint was investigated and upheld and the First Mate was issued with a warning and apologised to Ms Ashby. He also offered to be moved to the second shift if NIWA felt it was in the best interests of all concerned.

The First Mate was then promoted to Master in 2011 and Ms Ashby reported to him. In 2014 Ms Ashby confidentially raised bullying concerns about the (now) Master’s behaviour towards her. She asked to be moved to the second shift. NIWA spoke to the cook on the other shift about a possible swap but as he was happy where he was the swap did not occur. Read more....

A recent series of racist attacks on election campaign billboards of Asian candidates in Auckland show that race still remains an issue for a very small minority of our society.  Those faceless, cowardly vandals have reportedly left some in the community disturbed and hurt.

New Zealand is a more diverse society than we have ever been. We are more aware than we have ever been about bias and unconscious bias.

The composition of our courts today is far removed from the pale, stale males that generally stacked the benches of justice some years ago now.

There has been judicial recognition within recent judgments that cultural differences may need to be considered by our judges in what remains largely an anglo-centric legal system.

The recent decision of New Zealand’s highest court, the Supreme Court, in Deng v Zeng noted that it might be necessary to consider issues about ‘the cultural setting in an arrangement between two Chinese parties”. The New Zealand Law Society | Te Kāhui Ture o Aotearoa was invited to intervene in the appeal in consultation with NZ Asian Lawyers.

The Supreme Court made some general observations about cases in which one or more of the parties may have a cultural background which differs from that of the judge and the judgment provides guidelines for cases where it is appropriate for a judge to receive evidence bearing on the social and cultural framework within which the parties in a case may have been operating.

The court said a key to dealing with such cases successfully is for the judge to recognise that some of the usual rules of thumb they use for assessing credibility may have limited utility. For instance, assessing credibility and plausibility on the basis of judicial assumptions as to normal practice will be unsafe, if that practice is specific to a culture that is not shared by the parties.

Having said that, the Court reiterated that most of the usual ways that judges assess credibility while managing a cultural dimension may require no more than the most basic of all tools in a judge’s toolkit, namely context and common sense. Read more