1. While students are encouraged to discuss the essay questions together, your answer to an essay question must be completed
2. Identical or closely similar answers will be considered under the University’s plagiarism policy. All submitted work is put through our plagiarism software. In this respect, students should read Bell v Victoria University of Wellington  NZHC
3. This essay is worth 30% of your final Employment Law paper grade. There are five pages to this document including these
4. To assist, some useful and relevant research materials will be provided on Moodle. In order to be fair to all students, I will only answer questions from students about style and structure (rather than the substance) of proposed answers to the essay
5. You have 40 days from 11 am Wednesday 25 July 2018 to 4 pm Monday 3 September 2018 to complete and submit an answer to an essay
6. The essay questions will be available via Moodle from 11 am Wednesday 25 July
7. Your essay must be submitted electronically via Moodle as provided 4 pm Monday 3 September 2018. Go to the Essay Submission Post Box on Moodle and submit your essay under the “Essay” post box. Don’t forget to press the “Submit” button. The essays are then printed off and delivered to my office.
8. Please use the Assignment Template with Coversheet here http://www.waikato.ac.nz/law/student. Your Coversheet must include:
- the assignment title (ie Employment Law Essay);
- your student ID;
- the paper number and name (ie LEGAL420-18B – Employment Law); and
- the due date (ie 4 pm Monday 3 September 2018).
9. Online submission instructions can be found at http://www.waikato.ac.nz/law/student.
10. If you require assistance with submitting your essay, please contact the Help Desk by using the instant message service in your paper (from the Participants list at the top left). Alternatively, you contact the Help Desk by email ([email protected]) or telephone (838 4008). Taking screen shots of the problem can be very
11. Remember to give yourself at least half an hour before the cut off time to submit your completed essay.
12. You must submit your essay by 4 pm Monday 3 September
13. There is a 2000 word limit for the essay excluding footnotes / endnotes. The word limit is a maximum, not a requirement. You risk lowering your mark if you include irrelevant or repetitive
14. Accurately reference your work using footnotes / endnotes. Footnotes / endnotes are restricted to mechanical explanatory material only (e.g. any abbreviations used, citations of cases, )
15. No formal style for writing the essay need be adopted. You may adopt the same style as that used in answering examination questions (for example, abbreviations of case names, texts cited, etc so long as the footnotes/endnotes provide the relevant referencing).
16. You should keep a copy of your work to protect against the loss of the
17. If the essay is submitted late, you will be deducted 2.5 percent of the total mark for the assessment for each day or part thereof. If you are unable to complete the essay you will need to apply for special
18. Should you need to apply for a special consideration you should go to Law Reception or email them at [email protected] to obtain the correct form. You will need accompanying evidence to support your application. The grounds for applying for a special consideration relate to circumstances beyond a students’ control (such as illness, bereavement or trauma) which prevents you from completing the essay. The application must be made in writing within 72 hours of the due date of the essay.
19. Further information can be obtained in the Te Piringa Faculty of Law Undergraduate Handbook.
Answer one essay question on any of the following topics:
1. The law of England allows a man to contract for his labour, or allows him to place himself in the service of a master, but it does not allow him to attach to his contract of service any servile incidents – any elements of servitude as distinguished from service.
Davies v Davies (1887) 36 ChD 359 (CA) at 393
Examine the extent to which the common law prohibition on servile incidents of an employment relationship creates a “right to resign” (see generally: Ranburn Rest Home Ltd t/a Ranburn Home & Hospital v Senora ERA Auckland AA 95/06, 29 March 2006).
2. The applicant argued that the respondent denied him both his procedural and substantive right to accommodation with respect to his existing back condition and his use of medical marijuana for chronic
He submitted that his disability was a factor in the decision to terminate his employment. He further argued that the respondent’s zero tolerance policy on the use of drugs and alcohol in the workplace was discriminatory. The applicant contends that by relying on its zero tolerance policy, the respondent failed to take an individualized approach to considering his accommodation
Essay Submission Process
Aitchison v L&L Painting and Decorating Ltd  HRTO 230 at  – .
The Misuse of Drugs (Medicinal Cannabis) Amendment Bill is currently before Parliament. Critically analyse the extent there is a duty to accommodate an employee’s use of prescribed medical marijuana.
3. Deficient notice was not lawful notice so that Ms Smith was not dismissed on notice as s 67B requires.
Smith v Stokes Valley Pharmacy (2009) Ltd  NZEmpC 111 at .
Critically discuss whether requiring an employee to be paid in lieu of notice, rather than allowing them to work out a period of notice, invalidates a 90 day trial period (See generally: Farmer Motor Group Ltd v McKenzie  NZEmpC 98 and Ioan v Scott Technology NZ Ltd t/a Rocklabs  NZEmpC 4).
4. Allegations of this nature should have triggered an independent, external investigation. It was unwise for the firm to attempt an internal investigation into Incident Three given it did not possess the necessary expertise and was not sufficiently independent.
Dame Margaret Bazley Independent Review of Russell McVeagh (March-June 2018)
In the context of sexual harassment, racial harassment, bullying, and discrimination allegations analyse when an external independent investigation is required in order to satisfy the requirements of s 103A of the Employment Relations Act 2000.
5.  This is yet another case in which it is puzzling why employers include [“entire agreement”] provisions in circumstances where it is, in most cases, impossible to fulfil such expectations.
ABC Developmental Learning Centres (NZ) Ltd v Plasmeyer  NZEmpC 15 at -.
Assess the advantages and disadvantages of an “entire agreement” clause.
6.  As part of Wendco’s submissions, it asked what percentage of, for example, Mondays, an employee would have to have worked for it to be clear that their work pattern means the public holiday in question would otherwise have been a working day for them. I do not think that I can give a one-size-fits-all answer to that question, although for some employees the answer may be that it is clear that they worked more than 50% of the same day of the week in the preceding three to six months and so should be entitled to an alternative holiday.
Wendco (NZ) Ltd v Labour Inspector  NZERA Christchurch 199 at .
Discuss the factors that an employer must take into account when determining whether a public holiday falls on an otherwise working day for an employee.
Coversheet and Word Limit
7.  Bargaining for a collective agreement has extended over the period of the last 12 months and has been unduly protracted. There are serious difficulties in bargaining and these serious difficulties have precluded the parties from entering into a collective agreement. The extensive efforts by the parties have failed to resolve the serious difficulties and it is now time for the facilitation process to be used to assist in the conclusion of a collective agreement.
Capital and Coast District Health Board v The New Zealand Nurses Organisation Incorporated (Wellington)
 NZERA Wellington 55 at .
Critically examine the legal test for a referral to facilitated bargaining.
8. Thus, the Court is bound in our view to reject a submission made by the employer that the Court must balance the rights which the employer has, e.g. to keep its work flowing smoothly, with the rights given to the worker by the Act. The rights of the worker are intended by the Act to outweigh the rights of the employer. The entire concept and effect of the Act is that in certain circumstances workers may demand leave as of right and that the employer must make arrangements, whatever the cost, to ensure that the right is not infringed.
Manukau City Council v Auckland Local Authorities' Officers IUOW  NZILR 747 (LC) at 750.
Analyse the defence in s 41(1)(a) of the Parental Leave and Employment Protection Act 1987 that the position of an employee on parental leave is not required to be kept open because “a temporary replacement is not reasonably practicable due to the key position occupied within the employer’s enterprise by the employee”.
9.  We agree that the Authority and the Court may impose ‘global penalties’ in appropriate cases. That means that where there are multiple breaches of several statutory provisions in respect of multiple employees, it may be appropriate for the Authority or the Court to assess an ultimately single penalty in respect of those. In other cases, especially where there are not such close associations between the circumstances in which breaches have occurred, it may be appropriate for the Authority or the Court to impose separately assessed penalties so expressed. But in all cases, including those where global penalties may be imposed, the Authority or the Court must identify justifiably the constituent elements of a global penalty. The methodology of doing so is set out at the conclusion of this case and, as will be seen, leads to the imposition of a partially global penalty sum against each of the two defendants.
Borsboom v Preet PVT Ltd  NZEmpC 143 at .
Assess the advantages and disadvantages of imposing “global penalties”.
10. There are numerous challenges in terms of assessing an appropriate quantum of compensation, either at a pre- litigation or post-litigation stage. It is an inexact science. That is not, however, a reason to adopt a finger-in-the-wind approach. Rather, it reinforces the need for clarity as to the factors which have either fed into an assessment or which have been put to one side as irrelevant; and what the ultimate figure (for settlement discussion purposes or ultimately in an award made by the Authority or the Court) is based on and why.
Chief Judge Christina Inglis “Compensation for humiliation, loss of dignity and injury to feelings” (Paper presented to the Law @ Work Conference, Auckland, 26 June 2018) at 16 -17.
Critically examine the relevant and irrelevant factors in assessing compensation for humiliation, loss of dignity and injury to feelings.
According to the provisions of Section 103A of the Employment Relations Act 2000, an employee is at the authority to bring personal grievance against the employer under which they are working if there are sufficient grounds to believe that they have been dismissed unjustifiably. In this regard, employees are required to establish the fact that they were dismissed on unreasonable grounds. The burden of proof lies upon the employer to prove that the dismissal was reasonable and justified. It is worthwhile to refer here that, in case related to sexual harassment, racial harassment, bullying, and discrimination allegations; an internal independent investigation is necessary for the purpose of complying with the requirements depicted in Section 103A of the Employment Relations Act 2000. A power is entrusted upon the Employment Relations Authority to investigate the problem if it deems fit and proper. After proper investigation, the Employment Relations Authority shall issue a determination in order to evaluate the fact that whether the dismissal was justified or not. If the dismissal is found to be unjustified then, the Employment Relations Authority shall determine the remedies which the employee is entitled to. In the process of determination regarding allegations involving sexual harassment, racial discrimination and bullying both the Employment Relations Authority and Court is authorized to conduct an external independent investigation by applying the test of justification under the provisions of Section 103A of the Employment Relations Act 2000.
It is worthwhile to refer here that, an employee can be dismissed for various reasons. However, the most common reasons are associated with poor performance, misconduct in workplace and redundancy. In this context, an authority lies upon the employees to bring an action for claim for the purpose of challenging their dismissal by stating it to be unjustified and unreasonable. In these cases, the Courts of New Zealand usually applies the test of justification in order to examine the actions of the employer. According to the provisions of Section 103(1) (a) of the Employment Relations Act 2000, an employee has the right to bring a claim for personal grievance against the employer under which they are working if they have dismissed unjustifiably. However, in such cases, it is important on the part of the employees to establish the fact that they were dismissed unjustifiably and on unreasonable grounds. In such cases, the burden of proof lies upon the employer in order to prove that the dismissal is justified. For the purpose of proving that the dismissal was justified; the employer must rely on the following grounds-
- The dismissal must be for a valid cause.
- The dismissal must be carried on in a proper procedural and fair manner.
It is worthwhile to mention here that, according to the provisions of Section 4 of the Employment Relations Act 2000, the employer-employment relationship must be based on trust and understanding and this Section applies to the other aspects of employment relationship which includes dismissal as well. In cases involving sexual harassment and racial discrimination, investigation should be initiated in the early stages and the investigation procedure must satisfy the requirements depicted in Section 103A of the Employment Relations Act 2000. In order to determine the fact that whether the dismissal was justified or not in accordance to the provisions of Section 103A of the Employment Relations Act 2000, the Employment Relations Authority and the High Court of New Zealand applies the test of justification. According to the provisions of Section 103A, the question of dismissal can be examined by depending upon the actions of the employer and whether the actions were fair and reasonable that would have been done by any reasonable man of ordinary prudence at the time of dismissal.
Comparison can be made regarding the provisions of Section 103(d) of the Employment Relations Act 2000, which states that, an employee develops personal grievances if such employee has been sexually harassed during the tenure of the employment. The concept of sexual harassment has been defined in the provisions of Section 108 of the Employment Relations Act 2000. In order to comply with the provisions of Section 103(1) (d) of the Employment Relations Act 2000, the Courts of New Zealand has permitted the Employment Authorities to conduct in depth investigation. According to the provisions of Section 117 of the Employment Relations Act 2000, if an employee is sexually or racially harassed by an individual who is also an employee employed under the same employer or a client of the employer; if any complaint has been received regarding this, then the employer is at the authority to enquire into the matter in detail and take necessary steps on being satisfied with the relevant facts, for the purpose of preventing further repetition. It is worth mentioning that employees who do not act as the representative of the employer are referred to as co-workers. According to the provisions of Section 118 of the Employee Relations Act 2000, if there is a repetition of abovementioned behavior and thereafter any reasonable steps has not been taken by the employer for the purpose of preventing such repetition; then in such cases, the behavior of the co-worker is referred to as the part of the employee’s employer.
Essay Submission Process
The liabilities on the part of the employer for the actions of the co-workers are same as those in the case of clients and customers under the provisions of the Employment Act 2000. In this regard, it is worth noting that, employers are generally not presumed to be liable under the Employment Relations Act 2000, unless and until there is a failure on their part to efficiently deal with the complaints and preventing repetition of such behavior. From the very beginning, the Employment Relations Act 2000 has proved to be beneficial in preventing the repetition of such behavior in workplace. The approach taken by the Employment Relations Authority is entirely different from that of the Employment Relations Act 2000. In accordance to the provisions of Section 4(1A) (b) of the Employment Relations Act, it is important on the part of the parties bound by an employment relationship to act in good faith. Therefore the parties bound by the principles of employment relationship must actively and constructively establish and maintain a productive employment relationship for the purpose of effective communication. In this regard, it is noteworthy to mention here that, if the employee efficiently communicates with the employer regarding the harassment then, the employer can initiate investigation during the early stage. It is worth stating that, communication is an important medium for the purpose of delivering formal disciplinary processes. The provisions of Section 106 of the Employment Relations Act 2002, has been dealing with the liability on the part of the employers for the actions of their employees. According to this Section, it is considered to be an unlawful act for an employee to sexually harass his co-employee during the tenure of the employment.
The employers in order to initiate external independent investigation must gain appropriate knowledge regarding the nature of the harassment before incurring any liability. In the case of Adkins v Turks Poultry Farms  2 ERNZ 368, it was observed that the employer has no knowledge regarding the continuance of harassment in the workplace. In this case, the victim Adkins resigned from the employment in order to save herself from the continued sexual harassment. However, in the initial stage, a complaint was made by her that was investigated and the harasser was warned and was ceased for such conduct. In such process, Adkins has not informed regarding the outcome of the complaint. Although the employer believed that the harassment ceased to exist, it still continued.
Coversheet and Word Limit
There is an ability on the part of the employers to adopt various responses regarding disciplinary matters. As a result of this the Courts of New Zealand applied for the justification test in accordance to the provisions of Section 103A. By applying the justification test, an employer will be able to adopt a variety of responses which can be applied by any reasonable employer of ordinary prudence. Furthermore, there is a possibility that, the employer may not investigate the interactions between the employees and expel the matter in question by stating that there is no authority to involve in private interactions. In this regard, problem arises in cases where the complainant has not mentioned specific legal provisions under which the complaint would be solved. However, if the complainant is not satisfied with the actions of the employer who failed to conduct detailed investigation in the workplace for the purpose of detecting allegations regarding harassment and discrimination. It is important to mention here that, if such behavior is not eliminated from the workplace by constant investigation and involvement then, there can be a recurrence of such behavior outside the premises of the workplace. In such cases, valid grounds are available to the complainant to take an action against the employer in regard to the provisions of the Employment Relations Act 2000.
For the purpose of achieving legal consistency under the provisions of the Employment Relations Act 2000, the Courts are the authority to consider the impact of such behavior on employment relationships. In this regard, much emphasis has been laid upon human behavior which is closely related to the process of central consideration under the purview of initial investigation on the part of the employer. The complainant must prove beyond reasonable grounds that the nature of the behavior is such that, it created unfavorable impact upon the working relationship of the aggrieved party. For instance, as a result of unfavorable impact of harassment and discrimination, it can compel the victim to leave the company by way of resignation. In such cases, the aggrieved party must establish a presumption that the employer should have initiated early investigation for the purpose of preventing such behavior from further occurrence. For the purpose of counteracting the possibility of such presumption arising on the part of the employee; it is important on the part of the employer to adopt certain approaches in order to constitute employment relationships. It is worthwhile to refer here that, the question of employer liability may arise which can be explained in the context of various considerations that were taken into account in the previous investigation regarding the alleged misconduct.
Referencing with Footnotes/Endnotes
Following further investigation on the part of the employer, the complainant must bring an action for claim under the provisions of the Employment Relations Act 2000. This creates an ability on the part of the complainant to take reasonable action against the harasser and the employer as well. These cases reduce the likelihood of successful consequences. However, the central question revolves around the scope of employment that in fact provides a narrow concept of employment relationship as enshrined under the provisions of the Employment Relations Act 2000.
In the conclusion, it can be stated that, the Employment Relations Act 2000 has been functioning differently with varied perceptions regarding the scope of employment responsibilities. It is essential to confer here that, the nature of sexual harassment and racial discrimination within the tenure of employment does not operate in consistent with the Human Rights Act. It is evident that, employers may try to escape liability for a culture arising out of harassment and discrimination in the workplace in accordance to the Employment Relations Act 2000 if any formal complaint has been filed in regard to misconduct. Mention can be made regarding the fact that, the liability on the part of the employers under the legal framework of New Zealand is failed to take proactive steps for the purpose of ensuring a work environment free from harassment and discrimination. It can be finally concluded that, an independent investigatory body must intervene from time to time at the earliest possible way; for the purpose of educating the employers to gain appropriate knowledge regarding the existing compliances. In this way, it would prove to be beneficial in proceeding with any internal disciplinary investigation regarding the alleged discrimination and harassment.
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Brown, Celeste. "Is there a need for greater regulation of insolvency practitioners in new Zealand?: Exploring the options for reform." Canterbury Law Review 23 (2017): 111.
Hadfield, Chrystal. "Interfering with Choice of Law: The Employment Relations Act 2000 as an Overriding Mandatory Rule." (2016).
Jiang, Hua, and Yi Luo. "Crafting employee trust: from authenticity, transparency to engagement." Journal of Communication Management 22.2 (2018): 138-160.
Lambropoulos, Victoria. Rethinking the employer's summary dismissal power in the employment contract. No. PhD. Deakin University, 2015.
McDonald, Paula, and Paul Thompson. "Social media (tion) and the reshaping of public/private boundaries in employment relations." International Journal of Management Reviews 18.1 (2016): 69-84.
Rodriguez, Laura. "Principles that Should Govern the Right of Employers to Monitor Employee’s Computer Mediated Workplace Communication: Private Sector." (2016).
Sendjaya, Sen. "Covenantal Relationship." Personal and Organizational Excellence through Servant Leadership. Springer, Cham, 2015. 71-78.
Sjölin, Catarina, and Helen Edwards. "When Misconduct in Public Office is Really a Sexual Offence." The Journal of Criminal Law 81.4 (2017): 292-302.
Vosko, Leah F., Andrea M. Noack, and Eric Tucker. "Employment Standards Enforcement: A Scan of Employment Standards Complaints and Workplace Inspections and their Resolution under the Employment Standards Act, 2000." (2016).
Adkins v Turks Poultry Farms  2 ERNZ 368.
The Employment Relations Act 2000.
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