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International Incidents in Employment Law
One of the wonderful things about hosting the America's Cup in New Zealand was the way in which Auckland's Viaduct Harbour was able to attract a curious breed of spectator - the super yacht owner.
Anyone who visited the Viaduct Harbour over the summer would have been suitably impressed by the generous fleet of enormous private vessels which appeared to offer tremendous luxury to their inhabitants.
It must have been something of an unusual experience for the inhabitants of these vessels to pop up for breakfast on the main deck only to find that they were being observed by a horde of curious onlookers - all of whom were marvelling at the fact of this indulgent (and unusual) existence.
As one would imagine, these super vessels require a permanent crew of employees. It probably comes as no surprise that, like any walk of life, these employees too can have employment problems. The recent case of Beale v Houghton (Unreported, Employment Court, Auckland, 31 January 2002) is a case about an employment problem raised by a person who worked on super yachts. The case is intriguing because it illustrates the remarkable difficulties that can arise in situations involving "international" employment arrangements.
At the heart of the case is the super yacht, Salperton, which was being constructed in New Zealand. Ms Beale, who had experience in working on super yachts, entered into an arrangement to be employed as the yacht's chief stewardess.
Ms Beale said that an offer of employment was made to her in the course of a discussion which took place at Nice airport in France. That offer was said to be conditional upon the approval of Salperton's captain.
Ms Beale next had an interview with the captain in Palma Mallorca, in Spain. After this, she had additional discussions with Mr Houghton in Monaco. Ms Beale said that the essence of the agreement that was reached was that she would join the vessel in Auckland (as it completed its interior fit out) and that she would then travel with it to the Caribbean and Mediterranean. Ms Beale said that it was agreed that she would be paid a monthly salary in US dollars, which would be paid into a non New Zealand bank account. (The voyeur in me cannot help but note that the vessel's owner intended to use it no more than 14 weeks per year. Apart from a brief period of chartering, one assumes that the rest of the time the vessel would simply lay idle at some exotic port.)
Ms Beale argued that her employer had acted to breach this arrangement. She sought to raise an employment problem under New Zealand's legislation. There were some initial difficulties - including some uncertainty on the part of Ms Beale's lawyers about the way in which representatives of the employer could be served with proceedings.
The central issue which came before the Employment Court involved principles of conflicts of laws. The case presented an employee who was not a New Zealand citizen, and who had only been in New Zealand for a short period of time, with an intention to leave New Zealand as part of her employment. The employer was not domiciled in New Zealand. There was some doubt whether there was an intention for the contract to be made subject to New Zealand law.
In such situations, the Court must decide two things.
First, it must determine the "proper" law of the contract. In essence, it must decide whether New Zealand law should be applied to the contract. In doing so, it must look to all of the features of the contractual arrangement to determine whether or not New Zealand's law might be reasonably applied.
In this case, the Court determined that, having regard to all of the unusual features of the case, English law would be the most likely law of the employment arrangement.
Secondly, having determined the applicable law, the Court must decide whether or not it is the most "convenient" forum to consider the case. A New Zealand court may, in certain circumstances, apply foreign law in reaching a decision. That does not mean, however, that a New Zealand court is necessarily the best placed tribunal to consider a claim made under foreign law.
In this case, the Court determined that it would be more appropriate for Ms Beale to bring her claim in England. As a result, Ms Beale failed in her attempt to bring a claim under New Zealand law in New Zealand - and was left with an outcome whereby she was required to raise her claim in England under English law.
This case illustrates the considerable difficulties that may arise in claims associated with "international" employment arrangements. It also demonstrates how conflicts of laws principles can be applied to employment relationships. Ultimately, the employee in this case was left without a remedy in New Zealand - although she was still able to bring a claim overseas.
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