Selected cases

Employment Court of New Zealand · [2024] NZEmpC 74

Hu v Passion Fresh Ltd

The Court found that Ms Hu had not raised her grievance with Whver, her employer, as required under the Employment Relations Act 2000.

Employment Court of New Zealand13 May 2024

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Quick read

  • Employers and host businesses must understand their roles and obligations when engaging labour hire workers.
  • In Hu v Passion Fresh Ltd, the Employment Court dismissed Ms Hu's challenge to join Passion Fresh as a controlling third party in her grievance against Whver Hub Ltd.

Use this to check

  • Employees must raise personal grievances directly with their employer within 90 days.
  • Host businesses are not automatically liable for grievances involving labour hire workers.
  • Procedural missteps can lead to dismissal of claims in employment disputes.

Decision snapshot

  1. What happened

    • Yanfang Hu was employed by Whver Hub Ltd, a labour hire company, under a casual employment agreement.
    • Whver assigned Ms Hu to work at Passion Fresh Ltd, a host business.
    • Whver invoiced Passion Fresh for Ms Hu's services, and Ms Hu was paid directly by Whver.
    • In April 2021, Ms Hu raised concerns with Passion Fresh about her pay, alleged discriminatory work allocation, health and safety issues, and lack of proper breaks.

  2. What the court had to decide

    • The legal issue was whether Passion Fresh Ltd could be joined as a controlling third party to Ms Hu's personal grievance against Whver Hub Ltd under the Employment Relations Act 2000.
    • The Court examined whether Ms Hu had raised her grievance with Whver and notified Passion Fresh as required by the Act.

  3. What the court decided

    • The Employment Court dismissed Ms Hu's challenge, finding that she had not raised her grievance with Whver, her employer, as required.
    • Consequently, Passion Fresh could not be joined as a controlling third party.
    • The Court emphasised the procedural requirements under the Employment Relations Act 2000.

Practical impact

Practical read

  • Employers and host businesses must understand their roles and obligations when engaging labour hire workers.
  • Employees must raise personal grievances directly with their employer, not indirectly through a host business.
  • Failure to follow procedural requirements can lead to dismissal of claims.

Useful next steps

  • Employees must raise personal grievances directly with their employer within 90 days.
  • Host businesses are not automatically liable for grievances involving labour hire workers.
  • Procedural missteps can lead to dismissal of claims in employment disputes.
  • Labour hire companies should educate workers about grievance procedures.
  • Clear documentation and communication are essential in labour hire arrangements.

The story

Ms Hu's case centred on whether Passion Fresh could be joined as a controlling third party to her personal grievance against Whver. The Employment Relations Act 2000 allows employees to join controlling third parties if they have raised a grievance with their employer and notified the third party.

The Court found that Ms Hu had not raised her grievance with Whver, her actual employer. Instead, she had communicated her concerns directly to Passion Fresh. This procedural misstep meant Passion Fresh could not be joined as a controlling third party, and the Court dismissed her challenge.

What the Court decided

The Employment Court upheld the ERA's decision, finding that Ms Hu had not met the procedural requirements to join Passion Fresh as a controlling third party. The Court emphasised that the Employment Relations Act 2000 requires employees to raise grievances directly with their employer and notify any third parties they wish to join.

The Court noted that Ms Hu's communications with Passion Fresh did not substitute for raising a grievance with Whver. Without evidence of a grievance being raised with Whver, the Court dismissed Ms Hu's challenge.

What employers should learn

This case underscores the importance of understanding procedural requirements in employment disputes. Employees must raise grievances directly with their employer within the statutory timeframe. Host businesses should be cautious about their interactions with labour hire workers to avoid being perceived as employers.

Labour hire companies should ensure their workers understand grievance procedures and maintain clear records of employment agreements and communications. Host businesses should clarify their roles and avoid taking actions that could imply employer responsibilities.

Practical sense check

  • Ensure employees understand grievance procedures and timelines.
  • Maintain clear records of employment agreements and communications.
  • Host businesses should avoid actions that imply employer responsibilities.
  • Seek legal advice if unsure about roles and obligations in labour hire arrangements.

Practical checks

Employers and host businesses can take practical steps to minimise risks in labour hire arrangements. Clear communication, proper documentation, and understanding legal obligations are key.

Sense check

  • Clearly define roles and responsibilities in labour hire agreements.
  • Educate employees about grievance procedures and timelines.
  • Document all communications with employees and host businesses.
  • Review employment agreements to ensure compliance with the Employment Relations Act 2000.
  • Seek legal advice when disputes arise to ensure procedural compliance.

Common questions

Did the Court allow Ms Hu to join Passion Fresh as a controlling third party?

No, the Employment Court found that Ms Hu had not raised her personal grievance with Whver, her actual employer, as required under the Employment Relations Act 2000.

What is a controlling third party in employment law?

A controlling third party is a person or entity that exercises control over an employee's work but is not their direct employer. They can be joined to a personal grievance if certain conditions are met.

What are the procedural requirements for raising a personal grievance?

Employees must raise personal grievances directly with their employer within 90 days of the alleged incident. Indirect communication with a host business or third party does not satisfy this requirement.

What should labour hire companies and host businesses learn from this case?

Labour hire companies should ensure clear communication with their workers about grievance procedures. Host businesses should clarify their roles and avoid actions that could imply employer responsibilities.

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