LawNews - Issue 33

NEWS Sep 24, 2021 Issue 33

Inside ■ EMPLOYMENT LAW

Why sexual harrassment claims are different P03

■ LITIGATION

When is a coffee cup recyclable?

P05

How to manage

adls.org.nz

EMPLOYEE VACCINATION

Contents 03 PERSONAL GRIEVANCE HARASSMENT BULLYING

An MP seeks to extend the timeframe for filing sexual harassment claims

LawNews is an official publication of Auckland District Law Society Inc. (ADLS).

05 MISREPRESENTATION TECHNOLOGY PLASTIC

What makes a coffee cup recyclable?

Editor: Jenni McManus Publisher: ADLS Editorial and contributor enquiries to: Jenni McManus 021 971 598 Jenni.Mcmanus@adls.org.nz Advertising enquiries to: Darrell Denney 021 936 858 Darrell.Denney@adls.org.nz

06-07 DISCRIMINATION COMPULSION SAFETY

Workplace vaccination: a primer for employers

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Sexual harassment is often a progressive pattern of behaviour

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Sep 24 2021 Issue 33

EMPLOYMENT LAW

Committee backs bill on sexual harassment claims Jenni McManus The ADLS Employment Law Committee is in principle supporting a Private Member’s Bill from Labour backbencher Deborah Russell which seeks to extend from 90 days to one year the time limit for an employee to raise a personal grievance alleging sexual harassment.

But committee convenor Catherine Stewart says while there are a range of views among members, many are keen to see the bill also include bullying claims. And one committee member, Graeme Colgan, a former Chief Judge of the Employment Court, wants the one-year time limit extended to other classes of personal grievance such as racial discrimination.

Colgan says racial harassment cases have many of the characteristics of sexual harassment in the workplace in that they often involve a repeated (and escalating) pattern of conduct over time. “People say things initially and someone doesn’t take too much notice or brushes it off or minimises it but where that’s repeated conduct over a period, they slowly realise it’s more serious than they initially anticipated,” he says. “In that sense I think there’s no difference in principle between sexual harassment and racial harassment.”

Russell’s bill, the Employment Relations (Extended Time for Personal Grievances for Sexual Harassment) Amendment Bill, appears to have solid support from Labour MPs. In a policy statement to support the bill, Russell says that coming forward to report

The irony is that if you’re an employee you can still bring a common law claim for breach of contract for what would otherwise be a disadvantage grievance, and you’ve got six years to do it

sexual harassment can be difficult and it is common for victims to take time to consider what has happened and whether it is safe to speak up. The bill has been entered into the ballot but has not yet been drawn.

“I think it’s a good bill, but it doesn’t go far enough,” Colgan says. “The 12-month period is a good balance [between 90 days and the six years available to bring breach of contract claims] but it should include those other types of grievance where there’s a similar pattern of conduct, where it’s not a one-off disadvantage but one that builds up gradually. The irony is that if you’re an employee you can still bring a common law claim for breach of contract for what would otherwise be a disadvantage grievance. And you’ve got six years to do it.”

The current situation is problematic, he says, and the issue arises for many other classes of personal grievance under the Human Rights Act and/or Employment Relations Act, including the new domestic violence personal grievances, discrimination against union membership, and those raised on the grounds of marital status, gender or religion.

“People either can’t get their cases heard or they get only a truncated part of their case heard – that is the part that occurred in the 90 days before they raised the grievance,” Colgan says. “There are a lot of cases where application of that 90 days has seen people stranded and not able to get their cases dealt with in the way they should be.”

All a judge can do is tell the claimant that anything that happened before the 90-day period is background information only, and he or she cannot be compensated for wrongs that happened during that time.

Stewart says the issue will be on the agenda when Workplace Relations and Safety Minister Michael Wood meets with the Employment Law Committee early next month. In particular, the committee wants to raise the prospect of extending the timeframe for bullying claims to one year.

The issues around sexual harassment and bullying are similar, Stewart says, particularly in an environment where there is a power imbalance “which is inevitable in an employment relationship”.

Like sexual harassment, bullying

I think it’s a good bill, but it doesn’t go far enough

is often a progressive pattern of behaviour rather than an isolated incident. “There is case law which is helpful that says where it’s a pattern or a course of conduct then as long as the last incident is within that 90-day timeframe, then it’s within time. [So] you can raise previous instances so long as it’s accepted by the Authority or the court that it is a course of conduct.

It’s a bit like a constructive dismissal case where the last straw might have occurred within the 90 days but there was a build-up which might have gone back some time. That can all be used to establish there has been a course of conduct that has made this person resign.”

Stewart says the 90-day time limit is a blunt instrument and ‘somewhat arbitrary’, but she can see practical challenges if a two-tier timeframe were introduced for personal grievances.

Another approach to gain extra time might be using the ‘exceptional circumstances’ provisions of s 115 of the Employment Relations Act, where an employee has been so affected or traumatised by the matter that gave rise to the grievance that he or she could not properly consider raising the grievance within the 90-day timeframe.

But the bar is high, Stewart says, and more clarity around definitions in s 115 might be useful. As it stands, the exception probably doesn’t go far enough to be useful for many people.

Likewise, bullying. Colgan notes that

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while there is a statutory definition of sexual harassment, there is no such definition of bullying in the context of employment law. WorkSafe has a definition but that’s not necessarily relevant in circumstances where health and safety aren’t directly involved, he says. “So, if this definition of sexual harassment that Deborah Russell is proposing for sexual harassment were to apply to bullying, I think we would need a statutory definition.”

Stewart says the committee’s view is that the issue needs to be debated.

“We do see cases where the bullying has been horrific over an extended period, but out-of-time and it is difficult to sheet it home through one of those exceptions. And often people don’t raise the issue until they’ve left the workplace. It’s hard to do it while still there and the bully is there as well,

especially if the bully is your boss. It’s the same with sexual harassment.”

Another committee member, Jessica Higgins, an associate at Anderson Lloyd, has a slightly different take. She says the arbitrary 90-day deadline for filing a personal grievance makes it less likely victims of sexual harassment will formally raise their concerns but there is no 90-day limit on raising sexual harassment complaints with an employer about the behaviour of a colleague.

The employer is then obliged to inquire into the facts and, if satisfied the behaviour complained about took place, must take whatever steps are practicable to prevent repetition (s 117). There is no stipulated time limit in that section in terms of when the harassment must have occurred, Higgins says.

If the employer fails to take such steps, the employee will have a grievance by virtue of being sexually

harassed as if the behaviour was that of the employer (s 118). An employee can raise an unjustified disadvantage grievance (or possibly constructive dismissal grievance, if compelled to resign) if the employer fails to investigate a complaint of sexual harassment (or inadequately investigates a complaint), the basis for the grievance being the employer’s failure to keep the employee safe, rather than the harassment itself.

The 90 days would commence from the date the employer failed to take action (or the date employment ended, in the case of a constructive dismissal) rather than the date of the harassment took place.

Higgins also notes Russell’s bill proposes to amend s 114 to extend the period in which a personal grievance can be brought to 12 months where that grievance ‘involves sexual harassment’.

“This is very wide,” she says. “It would likely capture the following scenario:

an employee complains to his or her employer about sexual harassment by a colleague. The employer investigates, the employee is dissatisfied with that investigation and 12 months after receiving the investigation report, the employee raises a grievance based on the employer’s failure to adequately investigate their sexual harassment complaint.

Under the current wording of the bill, this would be permitted because that grievance ‘involves sexual harassment’,” Higgins says. “Arguably, that does not have the effect of enabling employees more time to come forward about a sexual harassment complaint; rather, it gives an employee more time to take legal action against their employer for any perceived failure in addressing a sexual harassment complaint – not necessarily a bad thing, but it’s not clear whether that’s the true intention of the bill.” ■

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Sep 24 2021 Issue 33

LITIGATION

Commission warns on recycling claims Tania Goatley & Sebastien Aymeric ​​​ A manufacturer has been warn​​​ed that claiming its hot drink cups are recyclable is likely to have breached the Fair Trading Act, highlighting some of the tensions around environmental claims.

Earlier this month, the Commerce Commission issued a war​​ning letter to Glopac New Zealand Limited, a paper packaging products company in Christchurch. Glopac had been representing (on its website, social media and the products themselves) that its hot drink cups were recyclable.

While the cups are indeed recyclable, unlike some other hot drink cups which can contain a nonrecyclable plastic lining, the Glopac hot drink cups are 100% paper.

The technology to recycle them exists in New Zealand but the commission considered the representations were misleading because commercial recycling facilities in New Zealand do not accept Glopac hot drink cups. The reason doesn’t relate to the cups themselves. Rather, it is said to be too difficult to separate the recyclable Glopac hot drink cups from similar-looking cups which contain a plastic lining and are therefore not recyclable.

The commission took the view that Glopac was likely to have breached the Fair Trading Act 1986, in particular: ■ s 10 which prohibits persons in trade engaging in conduct that is liable to mislead the public as to the characteristics of goods; ■ s 13(a) which prohibits persons in trade making false or misleading representations that goods are of a particular kind; and ■ s 12A which prohibits persons in trade making unsubstantiated representations.

In other words, the commission considered that the term ‘recyclable’ would be taken by consumers to mean ‘will actually be recycled’ rather than ‘could technically be recycled’.

The commission considered that the term ‘recyclable’ would be taken by consumers to mean ‘will actually be recycled’ rather than ‘could technically be recycled’

It is said to be too difficult to separate the recyclable Glopac hot drink cups from similar-looking cups which contain a plastic lining and are therefore not recyclable Luckily for Glopac, the commission issued a warning letter rather than issuing legal proceedings, as a company that breaches the Act can be fined up to $600,000.

Still, this warning raises a question as to whether the commission’s position is too strict and harsh for Glopac and traders generally, and whether the harm that is sought to be addressed in this case is in fact the one that needs regulator intervention.

Real tension The outcome points to a risk that those innovating products that are better for the environment – in this case 100% paper cups that keep coffee hot inside a paper container without plastic – will be penalised because of New Zealand’s recycling ecosystem.

A 2021 assessment of packaging recyclability

by Consumer New Zealand and its counterparts in nine countries found 57% of the packaging assessed wasn’t recyclable in practice in New Zealand, the second-worst outcome among the group. There is a real tension here between encouraging innovation in packaging and making sure environmental claims are accurate and enabling consumers to make informed purchasing decisions.

That said, the commission’s position should not come as a surprise.

In 2010 it charged Eco-Pal Limited in the District Court with breaches of the Fair Trading Act arising from the manufacture and sale of plastic bags claimed to be, among other things, recyclable. Part of the

Tania Goatley

Sebastien Aymeric

commission’s case was that Eco-Pal’s plastic bags could not be recycled because there was not sufficient infrastructure in New Zealand to recycle plastic bags (as opposed to rigid plastic).

In that case, survey evidence showed 92.7% of consumers would expect to be able to put a bag labelled as ‘recyclable’ out with the hard plastic items they normally recycle.

The judge dismissed the charges related to the recyclable claim on a procedural point, but commented in his decision: “Of course, it seems sensible to me to conclude that the word ‘recyclable’ on a refuse bag purchased by an average consumer shopper would connote an available recycling option or facility in New Zealand, in relation to that particular bag.

The commission’s Environmental Claims Guidelines issued in July 2020 also state: “If you are marketing a product as recyclable, you should consider whether appropriate recycling facilities are available to consumers likely to acquire the goods to avoid misleading them. Items that are widely accepted at kerbside recycling or council drop offs can be labelled as recyclable but other items that are less widely accepted, or that are not recycled through kerbside recycling, should specify where they can be

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employment but there are limits to what they can require of employees outside of reaching an agreement.

Photo: Tonklafoto / Getty Images

Are there any circumstances in which I can require an employee to be vaccinated?

EMPLOYMENT LAW/COVID-19

The short answer is yes, but this must be justified.

An employer can make vaccinations mandatory if an employee’s role meets the requirements of the mandatory Covid-19 Public Health Response (Vaccinations) Amendment Order 2021, but this is restricted to port and border workers. There is an online tool you can use to see if your circumstance comes within the order.

A recent Employment Relations Authority (ERA) decision shows employers will be on strong ground if they choose to dismiss an employee who falls within the order but refuses to be vaccinated. In the determination, the ERA found that the decision to dismiss a border worker who refused to get vaccinated was justified (it helped that the employer had followed a thorough process, including a risk assessment and had genuinely considered alternatives to dismissal).

For roles falling outside of the order, existing employees cannot be presented with a jab-or-job choice as this would infringe their rights under the Bill of Rights Act 1990.

However, right now, we consider there is scope to introduce a mandatory vaccine policy in certain circumstances, and after undertaking a health and safety risk assessment as outlined below. This position is consistent with WorkSafe’s vaccination guidance.

There is scope for this to broaden over time and expand Marie Wisker, Geoff Carter & Vonda Engels to more workforces as our Covid settings and government direction changes. We are conscious that several employers As Covid-19 vaccination roll-out moves up a gear, employers want to ensure they too are adopting a are grappling with ways of dealing with the cautious approach to health and safety that jab-reluctant in the workplace.

This is a difficult uses all means available.

The government, through the Directorlegal territory You can make vaccination a requirement General of Health, has powers under the in the employment agreement you offer to Health Act 1956 to require certain actions that has yet to be new hires, subject to anti-discrimination of its citizens to protect public health. It has fully tested by rules. relied on this Act to mandate vaccination the courts for key workers, such as at the border and Can I require that employees in MIQ, and to enforce aspects of its four in safety-sensitive roles are alert-levels regime. vaccinated?

But the government has been reluctant to use force, instead relying upon voluntary cooperation from Many roles are safety sensitive but do not come within the the ‘team of five million’. ambit of the mandatory vaccine order.

Rather than making vaccination compulsory for the We consider this may be extended at some point as general public, or even health workers at this stage, it has perceptions of what is a safety-sensitive role are moving, sought to protect public safety by being quick to go to level 4 particularly in response to the highly transmissible Delta when there is community transmission and has been cautious strain. about moving down the levels.

The Health Minister has confirmed that advice is being Outside of the political framework, employers have sought on whether to make vaccinations mandatory a responsibility to maintain a safe and healthy work for frontline health workers who come into contact with environment and must comply with the terms of an confirmed Covid-19 cases. There have also been discussions employee’s employment agreement. Requiring a vaccine could breach these terms for many existing employees.

Continued on page 07 An employer can negotiate new terms and conditions of

Answers for bosses to sticky vaccination questions You can make vaccination a requirement in the employment agreement you offer to new hires, subject to antidiscrimination rules

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Sep 24 2021 Issue 33

Continued from page 06

Where you want to make vaccination a requirement for an existing employee performing a role outside the order, you will need justification for doing so and you must proceed with care

about whether other frontline health workers, aged care workers, supermarket workers and transport drivers should be included.

Vaccination is compulsory for residential aged care workers across Australia but much of their response is stateled. New South Wales, for example, requires that ‘authorised workers leaving areas of concern’ are vaccinated. In the New Zealand context, this would probably capture truck drivers delivering product to and from Auckland. Testing is now required for these workers before they cross the Auckland border.

Where you want to make vaccination a requirement for an existing employee performing a role outside the order, you will need justification for doing so and you must proceed with care.

We recommend you conduct a formal risk assessment of each relevant role to support your decision and to demonstrate why additional measures to reduce the risk of Covid-19 are necessary to fulfil your workplace health and safety obligations.

The ERA reiterated the importance of a risk assessment in its recent decision where it held that the employer had undertaken an ‘impressive review’ of the risks and clearly identified the individual risk factors specific to the employee’s role before requiring the employee (who was later dismissed) to be vaccinated.

Key risk factors for this assessment will be: the risk that the role is exposed to the virus; that the role poses a high risk for widespread community transmission and/or whether the role interacts with vulnerable people who are at serious risk of illness. This risk analysis may change over time as New Zealand’s alert levels change.

Employees have the right to do their job under their existing employment agreement, rights of individual choice under the Bill of Rights Act and the right not to be discriminated against under the Human Rights Act. So this is a difficult legal territory that has yet to be fully tested by the courts.

You must explain clearly why the position is deemed safety-sensitive and why vaccination is required. In addition, an employer must have considered all other available options to reduce the risk and whether mandatory vaccinations are necessary on top of those measures. Employers should engage with affected employees when developing the vaccination policy and be consistent in the policy’s application.

What are my options if a person in a sensitive role refuses vaccination?

Again, if the person is an existing employee, you will need to have regard for their contractual rights.

■ Consult the employee to determine why he or she won’t be vaccinated or won’t supply evidence of vaccination.

Consider the reasons to ensure there is no discrimination under the Human Rights Act. ■ Consider whether safety can be served by requiring the employee to wear PPE and maintain social distancing.

■ In the absence of any other solution, consider redeployment.

■ If that is not possible, you may need to terminate the worker’s employment.

What does this mean for office workers?

It is unlikely that a mandatory vaccination policy could be implemented within a standard office workplace while New Zealand is operating within its current alert-level framework. That framework means there is a very low risk of transmission at the point at which workers are allowed back into the office at level 2.

We do however suggest that workplaces keep this under review and look at all other available means they might have to assess the risk of transmission within their workplace so they are well placed for a future beyond the current alert -level system.

For example, employers should strongly encourage vaccinations and could survey staff to get a good understanding of vaccination levels throughout the office.

This could help to allay fears or put the employer in a better position to justify additional measures if vaccination rates are low.

Can I require proof of vaccination?

To ask for proof of vaccination is to seek personal data, which engages the protections the employee has under the Privacy Act. You will need to provide a solid explanation of why you require the information to safely manage your workplace and we recommend you rely on voluntary cooperation.

However, you can make it clear that you will take a refusal to answer as indicative that the person is not vaccinated.

Can I incentivise employees to get vaccinated?

You may, but you will need to avoid being seen to discriminate against employees who are unable to vaccinate on health or religious grounds.

New Zealand employers in our experience are considering either or both of two incentive options: paid time off to get vaccinated and cash or benefit incentives once proof of vaccination is provided.

This approach is also being taken in the UK and the US and we understand is producing results in both those jurisdictions.

To avoid discrimination, you might negotiate with each

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Continued from page 05

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Proactive compliance

But is it recyclable?

from what it is composed of. Whether or not it is, in fact, recycled, and turned into something that is re-usable or useful will depend on the environment into which it is placed, and whether that environment allows its features and characteristics to be fulfilled.”​

On appeal, the Full Federal Court agreed with the primary judge that in this case Woolworths’ claim that its products were biodegradable and compostable was accurate. Although the Full Federal Court did not directly express an opinion on how ‘recyclable’ should be interpreted, it stated that a statement such as ‘recyclable’ is about ‘presently measurable and provable scientific characteristics or properties’.

This would seem to endorse the primary judge’s approach that a claim of recyclability is a statement about the characteristics or inherent features of the

The commission’s position in its warning letter to Glopac clearly puts the burden on businesses to be proactive when ensuring compliance with the Fair Trading Act (for example in this case, by engaging with recyclers on an ongoing basis). As the commission puts it in a letter to Glopac: “It is important that you maintain an awareness of industry changes to ensure your claims remain accurate over time.”

The commission’s paramount consideration here is consumer protection. Consumers do not have time to investigate such claims and they are entitled to take them at face value when making quick, low-value purchasing decisions. There should therefore be no room for interpretation; it has to be black and white.

It would be interesting to see how New Zealand consumers interpret ‘recyclable’ eight years after the High Court’s decision in Eco-Pal. Would they understand that ‘recyclable’ products will in fact be recycled only if they are treated appropriately in a recycling facility, meaning the claim is about only a product’s inherent ability to be recycled? This is the balance that the Australian Federal Court appears to have favoured.

Tania Goatley is a partner at Bell Gully and Sebastien Aymeric is a senior associate at the same firm ■

Photo: lingqi xie / Getty Images

recycled. For example, ‘Recycle at store drop off’ or ‘Contact supplier for recycling options’.

The Australian Competition & Consumer Commission takes a similar position, stating in its equivalent guidelines: “These claims [as to recyclability] can be potentially dangerous if … the facilities to recycle it are not available in Australia. Manufacturers and retailers should verify that their product can actually be recycled before using such claims.

Consumers are likely to understand the term ‘recyclable’ or recycling symbols on products to mean that the product is likely to end up in a recycling facility. If there are very few facilities, such facilities do not exist at all or they exist only as pilot plants, then the use of the term or symbols may be misleading.”

However, the Federal Court of Australia in 2019 took a different approach in a case involving products claimed to be ‘biodegradable and compostable’. The judge stated in her decision: “The recycling comparison is a good one, and one I am satisfied reasonable consumers would readily make. Consumers understand that recyclable products will only in fact be recycled if they are treated appropriately in a recycling facility.

The reasonable consumer understands that fact does not alter a product’s state, or inherent qualities, as a “recyclable” product, but it does affect whether that capacity or capability, and benefit to the environment, comes to fruition. I see an analogy, as I have noted, [between the words ‘biodegradable and compostable’ and] the word ‘recyclable’. That is also a description of the features or characteristics of a product, derived

products rather than a statement about a future matter – ie, whether it will in fact be recycled or not.

These comments by the Federal Court and the Full Federal Court are not binding precedents in New Zealand because this is not what the courts were asked to rule on, and New Zealand courts are not bound by Australian decisions. However, they will be persuasive in Australia (and to a much lesser extent in New Zealand).

Sep 24 2021 Issue 33

CASE NOTE

ChCh earthquake insurer secures court win The substantive dispute relates to settlements between Southern Response, the insurer, and an estimated 3,000 insured policyholders Sacha Jugum Canterbury Earthquakes – disputed settlement terms with insurer - representative claims/class actions – scope of representative claim - appropriate communications by insurer with class action members – right to freedom of communication - court supervisory powers over communications in this context - appropriate funding arrangements – content of opt-out notice - applicable principles – procedure – balance of convenience – precedent and academic commentary, including overseas material – analysis of legal theory and ethical considerations – orders made in each individual decision relating to individual focus of each decision

Ross v Southern Response Earthquake Services Limited [2021] NZHC 2451, 2452, 2453 and 2354 (Osborne J) (four related judgments dated 20 September 2021) These four related judgments total some 230 pages: each is numbered sequentially and is dated 20 September 2021, dealing with related interlocutory aspects of this litigation.

The substantive dispute relates to settlements between Southern Response, the insurer, and an estimated 3,000 insured policyholders, all of whom settled or otherwise made claims with Southern Response and received cash settlements for earthquake damage to their homes. These settlements occurred prior to October 2014.

Brendan Ross’ claim is based on an allegation that Southern Response misrepresented aspects of the settlement and the true cost of remedying earthquake damage, with the result that Ross settled on less favourable terms than he otherwise would have. At various points in time Southern Response has settled and/or engaged in similar litigation with

other policyholders on an individual basis, however Ross’ claim is a representative one (a ‘class action’).

His claim was originally held to be an opt-in type, but appeals ensued and in November 2020 the Supreme Court confirmed it was an opt-out claim.

Southern Response argued it had the right to directly communicate with Ross and with other class action members, however Ross opposed this.

Southern Response then applied for the right to make certain communications to Ross and other class action members.

These four judgments each deal with the communications issue and different substantive and procedural aspects of the class action process, and progress.

They are summarised in turn:

includes case law and regulatory procedure from several overseas jurisdictions (United States of America, Canada, United Kingdom, Australia and others) as well as thorough summaries of relevant New Zealand precedent and procedure.

Ross v Southern Response Earthquake Services Limited [2021] NZHC 2452 This decision focuses specifically on the courtapproved content and form of the notification Southern Response must provide to all class members about their rights to opt-out, including the court’s requirements about timing, advertising, delivery and distribution of the notification – note the opt-out date is 20 December 2021.

Ross v Southern Response Earthquake Services Limited [2021] NZHC 2453 This decision determines Southern Response’s amended application about proposed communications with class members, including webpage material and information about independent legal advice – the background to the wider dispute and the issue over communications is summarised [see in particular paragraphs 3-13] – this decision also considers the types of communications Southern Response can make during different timeframes, including a detailed analysis of proposed forms in a 41 page appendix section, and also reference to precedent.

Ross v Southern Response Earthquake Services Limited [2021] NZHC 2451

Ross v Southern Response Earthquake Services Limited [2021] NZHC 2454

This decision sets out the reasoned basis for the court’s supervisory powers and its jurisdiction to supervise communications between Southern Response and the policy-holders in this context – consideration of Southern Response’s right to freedom of communication versus the right of the court to intervene in certain situations - the decision sets out a factual and procedural background to the substantive dispute – Southern Response had previously litigated a claim with an unrelated individual party (D) and at that time, had indicated it would develop a package to cover other policyholders in D’s position – the background to the development of this package is also referenced [see in particular, paragraphs 20-29] – the decision is especially important for its comprehensive analysis [see in particular, paragraphs 144-172] of legal ethics, professional practice, comparative law, and class action procedure and policy – this detailed discussion

This decision determines Ross’ application for a setting-aside order – the order sought would require Southern Response, in the event it reaches settlement with any class action member, to establish an interestbearing escrow account and to set aside and pay into the escrow account 15% of the agreed settlement sum – this 15% would be set aside with the intent that it was later applied to litigation and funding costs for Ross and other class action members – the court declined Ross’ application and held that that the balance of convenience does not support requiring any part of such settlement funds to be set aside. ■ The four judgments are all available on the www.courtsofnz.govt.nz website, together with a media summary.

Sacha Jugum is a senior solicitor at Brookfields and editor of The Bulletin ■ 09

FEATURED CPD

FINAL NOTICE

RETAIN SOURCE ACCESS

Criminal disclosure uncovered Live Stream 2 CPD hrs Thursday 30 September 4pm – 6.45pm Presenters Julie-Anne Kincade QC and Robin McCoubrey, partner, Meredith Connell Chair Judge Belinda Sellars QC

The scope for disclosure has widened as technology has developed. Today, counsel needs to consider seeking cellphone provider records of witnesses or social media posts together with more traditional items such as accounting and bank records or fingerprint evidence. Attention must be paid to the independence (or otherwise) of the source and production of evidence.

Responsibilities and obligations of counsel can be confusing.

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The construction landscape amid Covid-19

Live Stream 2 CPD hrs Tuesday 5 October 4pm – 6pm Presenters Geoff Hardy, partner, Martelli McKegg and Shanti Frater, partner, Simpson Grierson

COVID-19 IMPACT CONSTRUCTION

The impact of Covid-19 on the construction industry landscape is significant. Pandemic restrictions and precautions have seen, and will continue to see, serious and long-lasting implications for current and future construction projects. This seminar outlines the impact of the global pandemic and pandemic-related restrictions on both residential and commercial construction projects, and addresses the various contractual, legal and commercial issues and challenges that have arisen as a result.

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Navigating defective building litigation LIABILITY CLAIM DEFECTS

In Person | Live Stream 2 CPD hrs Tuesday 19 October 4pm – 6.15pm Presenters Andrew Hough; Michael Thornton; Shyrelle Mitchell and Kiri Harkess Chair Geoff Hardy, partner, Martelli McKegg IN PERSON

10

New Zealand’s building boom over the decades has generated a multitude of claims over poor workmanship. Buildings that remain unrepaired, or are the subject of faulty remedial work, nevertheless continue to be bought and sold.

This seminar provides a guide to navigating defective building disputes (from the perspectives of both counsel for plaintiff and defendant) having regard to current issues, and in the context of recent and key case law.

LIVE STREAM

Sep 24 2021 Issue 33

adls.org.nz/cpd

Medically assisted dying

In Person | Live Stream 2 CPD hrs Wednesday 20 October 2pm – 4pm Presenters Grant Illingworth QC; Richard McLeod; Dr Jeanne Snelling and Dr Jane Casey

DEATH CAPACITY PROCESS

cpd@adls.org.nz

09 303 5278

The End of Life Choice Act 2019 comes into force on 6 November 2021. Hear from our panel of lawyers, academics and a psychogeriatrician who will unpack the Act and the corresponding process, offer insights into its implementation, consider capacity and other clinical challenges, and outline some of the uncertainties, red flags and thorny issues.

Chair Professor Kate Diesfeld, Professor of Law, AUT and Chair, AUT Ethics Committee

IN PERSON

LIVE STREAM

Evidence law seminar LEGISLATION CHANGES INSIGHTS

In Person | Live Stream 2 CPD hrs Wednesday 1 December 4pm – 6.15pm Presenters Scott Optican, Associate Professor, University of Auckland and Jack Oliver-Hood, barrister

Learning Outcomes Update your knowledge of the current versions of key provisions of the Evidence Act 2006 and recent case law on those provisions from the High Court, Court of Appeal and Supreme Court.

Learn about potential legislative changes to the Evidence Act 2006.

Gain practical and useful insights into the application of evidence law in civil and criminal cases.

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Limitation: a map for the minefield

Webinar 1.25 CPD hrs Tuesday 26 October 1pm – 2.15pm Presenters Philippa Fee, partner, Fee Langstone and Tim Rainey, barrister, FortyEight Shortland

This webinar will provide a map for the limitation minefield: discussing the key aspects of limitation law from the Limitation Act 2010 and elsewhere, which can trip up even the most seasoned litigators.

LEGISLATION APPLICATION ISSUES

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CPD IN BRIEF

Leading your career Wellington

Workshop 8 hrs Thursday 28 October 8.45am – 5pm Facilitators Miriam Dean QC and Liz Riversdale, Catapult

Exclusively for women Lawyers with 6+ years’ PQE. Take charge of your career and realise your underlying potential. This practical, interactive one-day workshop, led by one of New Zealand’s top QCs and one of New Zealand’s senior leadership experts, will arm you with resources, self-confidence and focus to apply immediately to your role and to enhance your future career.

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‘Court’ by forensics

Workshop 4 hrs Saturday 30 October 9am – 1.15pm Presenters Tom Coyle, managing director, Forensic Insight Ltd and Allie Coyle, director, Forensic Insight Ltd

Forensics never goes away. It’s everywhere and every contact leaves a trace.

This workshop will take you behind the scenes as a crime scene investigator, so you get a greater understanding of what type of evidence is preserved from the scene and used effectively in court. Understand the importance of chain of evidence and get an insight into how to deal with expert forensic witnesses.

Numbers strictly limited

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Valuation disputes in family property cases

Webinar 1 hr Wednesday 3 November 12pm – 1pm Presenter Marnus Beylefeld, director, Sapere Forensic & Valuation Chair Brian Carter, barrister, Bastion Chambers

Presented by an expert in valuation, litigation support and forensic accounting, and with commentary from a family law barrister, this webinar will provide insights into basic valuation theory, principles and methodologies,and its application to family property law.

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Burning Issues Forum 2021

Forum 2 hrs Tuesday 9 November 4pm – 6pm Presenters Philip Skelton QC, Bankside Chambers; Mere King, partner, Buddle Findlay; Liz Coats, partner, Bell Gully; Shelley Kopu, principal, Shelley Kopu Law and Rosemary Wooders, senior associate, Bell Gully

Cast aside your scarf and hat and warm yourself at the boiling vat that is the Burning Issues Forum 2021. Come see the flickering fangs of orange torch the scorching cauldron’s bottom! Legislation, reinstatement, tikanga and name suppression are some of the scalding hot topics that will be served, crackling and steaming, at this, our annual inferno.

Chair Rachael Judge, senior associate, Simpson Grierson

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Towards Sustainability: The Role of the Law Firm Tuesday 16 November | Seminar | 2 CPD hours Visit adls.org.nz for more information.

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Sep 24 2021 Issue 33

Continued from page 07

employee who genuinely cannot be vaccinated on health and religious grounds an alternative health beneficial action they could take which would qualify them for the bonus. This would be best activated by asking these people to approach you privately.

Alternatively, the incentive could be available to all employees once the workplace reaches a certain level of vaccination.

To ask for proof of vaccination is to seek personal data, which engages the protections the employee has under the Privacy Act

What if an important customer, client or member of the supply chain makes vaccination a condition of doing business?

There is little you can do to challenge conditions of entry but there are a range of measures you can take.

■ Establish whether the policy will be lifted once we are restored to levels 1 and 2, or once the vaccination roll-out is complete, or once the government has reopened the borders.

■ Inform your employees of the position.

■ Encourage the unvaccinated to consider vaccination, ensure they have access to expert health advice, and tell them they can have time off work to get the shots.

■ If you have hold-outs, consider discussing with the client or customer whether their concerns would be met if those workers were redeployed away from client-facing roles or if they were required to wear masks and maintain social distancing while at work.

■ If this is not practicable and redeployment is not possible (and the instruction is time-limited), consider agreeing a period of annual or unpaid leave.

■ If no other suitable alternatives can be found, you may have to consider termination of employment on the basis that there is no work the employee/s can do.

What are my options if staff refuse to work with employees who are not vaccinated?

Employers in these circumstances can lean on the government’s

four-level regime. If the government, based on expert advice, has decided the level of interaction it is allowing is appropriate and safe, that judgment will prevail.

This means a refusal to return to work is a refusal to work, with all the levers and sanctions under normal employment law available.

Can I ask during periods of community transmission whether employees have been to any locations of interest or are a close contact of someone who has?

Yes, you may. As a PCBU, you have a responsibility to take all reasonable steps to protect the health and safety of people at your workplace. However, you need to have a lawful purpose under the Privacy Act to seek private information so you need to be clear about why it is necessary.

Can I insist on proof of a negative Covid test before allowing them back to work?

Yes, if that employee has been identified as a contact.

Government support The government has increased the payments available for workers who cannot work from home: ■ to $359 under the Short Term Absence Payment (while awaiting Covid test results), and ■ to $600 a week for fulltime workers and $359 for part-timers (while self-isolating).

Not all of New Zealand remains in lockdown but the government has clarified that while Auckland remains in alert level 4 or level 3, employers throughout New Zealand can continue to seek the wage subsidy if the revenue reduction requirements (and other criteria) are met.

Marie Wisker is a partner at Chapman Tripp, Geoff Carter is a special counsel at the firm and Vonda Engels is a senior associate ■

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WILL INQUIRIES

Briefs Aussie starts reopening Australia is on track to reopen its international borders by Christmas at the latest, according to Trade and Tourism Minister Dan Tehan. But Tehan says this will depend on 80% of adults over the age of 16 being fully vaccinated (the current level is 38%) and it is not yet clear which overseas destinations will be available. Meanwhile, New South Wales says it is set to exit lockdown on 11 October when the state expects to hit its 80% vaccination target. Qantas says it will slowly resume international flights, beginning next month.

Please refer to deeds clerk. Please check your records and advise ADLS if you hold a will or testamentary disposition for any of the following people. If you do not reply within three weeks it will be assumed you do not hold or have never held such a document.

LawNEWS: The no-hassle way to source missing wills for $80.50 (GST Included) reception@adls.org.nz DX CP24001, Auckland 1140

ADLS, PO Box 58, Shortland Street, Fax: (09) 309 3726

DUNCAN Mary Grace Helen

Prince Andrew served After weeks of dodging by the Duke of York and his staff, legal papers were finally served on Prince Andrew this week in the civil sexual assault claim being brought in the United States by Virginia Roberts Giuffre. The documents were delivered to the duke’s Los Angeles lawyers and to the Royal Courts of Justice in London. Andrew now has 21 days to respond to the claims which his lawyers describe as ‘baseless, non-viable [and] potentially unlawful’. n

• Currently residing at Aspen Rest Home and Hospital, 27 McLean Street, Tauranga, formerly of Flat 1/110 Hamilton Street, Tauranga • Retired • Aged 87 HITCHLOCK Malcolm

Law Firm Ownership Opportunity An affordable opportunity for an entrepreneurial lawyer to purchase their own practice. Ideally suited to a young lawyer after a different pace and flexibility, ready to step out on their own, but with an existing client base and law firm structure, without the hassle of starting from scratch.

The current sole practitioner of this virtual/home [Auckland] based law firm wishes to exit for family reasons. They make a good return from minimal hours work. Continue as is for great work/life balance or use it as a base to grow from. The current director could stay connected to the firm as required.

Areas of practice include property, commercial and general practice.

Please email expressions of interest to: lawfirmadvertiser@gmail.com

• Late of Waikanae • Retired • Aged 88 / Died 26’03’21 PARIMA Are • Late of 33C Beach Road, Te Atatu Peninsula, Auckland, 0610

(09) 303 5270

• Divorced • Retired • Aged 76 / Died 09’09’21 PETERS Barbara Ruby • Late of 113 Ngunguru Ford Road, RD 3, Whangarei, 0173 • De facto • Caregiver • Aged 61 / Died 10’01’17 TAYLOR-SMITH Wilfred Walter • Late of Apartment D214 Lady Allum Apartments, 20 Napoleon Avenue, Milford, Auckland, 0620 • Spouse/partner deceased • Retired electrical design engineer • Aged 96 / Died 02’07’21

Harmans presents an exciting opportunity for a talented and ambitious litigation lawyer with approximately 6 years' post-admission experience.

For more details visit us at: https://www.harmans.co.nz/about-us/current-vacancies-careers

P 03 3797 835 A 79-81 Cashel St, Central City, Christchurch 8011

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www.harmans.co.nz

Sep 24 2021 Issue 33

Commerical/Property Lawyers wanted

Chancery Chambers office for rent

After a change of scene?

Come and work with us in lovely Wanaka!

Three office spaces are available in the heritage Chancery Chambers building on the corner of Chancery and O’Connell Streets.

We’re a law firm that empowers its people. Our flexible working environment is fluid, genuine, respectful, relaxed and our people come first.

Who are we?

We are astute legal strategists, problem-solvers and powerful advocates for our clients, pioneering a modern take on legal support.

12.27sqm net located on the fifth floor, internal facing.

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The work we do is diverse and challenging. We get to work with some of the most interesting and successful people across the country and abroad.

Community spirit is important to us. We actively support local arts and sporting events, and donate our time, expertise, and money to great causes.

21.16sqm net located on the fifth floor, consisting of two smaller adjoining offices, internal facing.

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Who are you?

An associate or senior level lawyer with experience in commercial and/or property law looking to take the next step in your career.

33.71sqm net located on the third floor of the O’Connell Street side of building.

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What's in it for you?

The opportunity to grow with a firm that will support you and have your back, and we’ll help you build your personal brand too. We offer a competitive salary and relocation allowance will be considered for the right candidates.

Opex includes reception to greet clients/receive couriers, kitchen facilities, copy room access and use of shared meeting rooms.

Please contact Krystal Marshall on (09) 303 5277 or krystal.marshall@adls.org.nz for more information

Applications close 10 October 2021 Forward your CV to hiring@aspiringlaw.co.nz or call Janice Hughes on 03 443 0911

Class and Funded Litigation: Knowing your Professional Obligations Wednesday 17 November | 4.00pm - 6.15pm This seminar is intended to help lawyers navigate this difficult and potentially perilous field, identifying and avoiding professional issues before they become a problem.

T 09 303 5278

E cpd@adls.org.nz

W adls.org.nz/cpd

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Bookstore A convenient, one-stop-shop for all your legal resources ADLS members, including student members, receive a 10% discount

Visit the online bookstore:

adls.org.nz/bookstore Phone:

09 303 5270 Email:

thestore@adls.org.nz

The ADLS Bookstore couriers nationwide.

Or, browse in person at: The ADLS Bookstore Ground Floor Chancery Chambers 2 Chancery Street Auckland CBD

Competition Law Update Thursday 18 November | 4.00pm - 6.15pm Focussing on restrictive trade practices, cartels, monopolisation, mergers and acquisitions, dealings with the Commerce Commission, and compliance programmes, our panel will use case studies to update you on law changes together with recent cases and examples, so you and your clients can proceed with best practice.

T 09 303 5278

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E cpd@adls.org.nz

W adls.org.nz/cpd