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Wyatt v Simpson Grierson
AC 45/07
Heard: 27 Sep 2006, Auckland
Judgment Date: 20 Jul 2007
Court/Authority/Tribunal: Couch J
Appearances: G Wyatt (in person) ; P Swarbrick
NON DE NOVO CHALLENGE TO DETERMINATION OF EMPLOYMENT RELATIONS AUTHORITY – APPEAL AGAINST DECISION OF EMPLOYMENT TRIBUNAL - Practice and procedure – When cause of action accrued – Whether personal grievance raised within 90 day period – Plaintiff alleged salary review in 1999 unfair because paid less than comparable colleagues – Plaintiff submitted cause of action yet to come to his notice because colleagues actual salaries unknown – Defendant submitted cause of action arose when salary review completed and grievance not raised in 90 day period – s114 Employment Relations Act 2000 – HELD – If circumstances in which action taken an essential element of personal grievance, 90 day period begins when employee becomes aware of circumstances necessary to form reasonable belief action unjustifiable – Personal grievance action accrues at commencement of 90 day period – Grievance not raised in 90 day period – Defendant had not consented to late submission – Challenge dismissed – Solicitor
This was a non de novo challenge to a determination of the Employment Relations Authority, also sitting at the Employment Tribunal, which held that the plaintiff had failed to submit his personal grievance within the 90 day period.
The plaintiff was employed by the defendant as a staff solicitor from 1998 until 2002, when he was made redundant. The plaintiff believed that his salary reviews conducted by the defendant in 1999, 2000 and 2001 were carried out unfairly because he was paid less than comparable colleagues. The plaintiff did not have actual knowledge of his colleagues’ salaries. However, he accessed billing information about his colleagues on the workplace computer system. It was also widely discussed that there was a ratio of 4.5 to 1 between the billing budget and solicitor’s salaries. Using that information, the plaintiff calculated what he believed his colleagues’ salaries to be. The plaintiff advanced his salary complaints in a memorandum to the defendant in 2002.
The Authority found that the 90 day period began when the plaintiff was notified of the result of his salary review and the plaintiff had failed to submit a personal grievance for any of the relevant years. However, in a second determination, the Authority found that the defendant had consented to the late submission of the personal grievances relating to 2000 and 2001. Therefore, the present case concerned only the personal grievance relating to the 1999 salary review.
The plaintiff submitted that the cause of action had not yet come to his notice because he did not have actual knowledge of his colleagues’ salaries. Therefore, the 90 day period for submitting his personal grievance had not commenced.
The defendant contended that the cause of action arose when the salary review was completed. The plaintiff was not entitled to pursue his claim because he had not submitted his personal grievance within 90 days of that date.
The Court was required to resolve whether the plaintiff’s claim should be determined under the Employment Contracts Act 1991 (“ECA”) or the Employment Relations Act 2000 (“ERA”).
Held
(1) The 90 day period will usually begin when the action alleged to amount to a personal grievance occurs but, if the circumstances in which that action was taken are an essential element of the personal grievance, it will begin when the employee becomes aware of those circumstances to the extent necessary to form a reasonable belief that the employer’s action was unjustifiable. (para 29)
(2) To the extent that the plaintiff’s claim was founded in contract, the cause of action accrued on 1 February 1999 when the plaintiff was notified of the result of his salary review. Proceedings in respect of any such claim therefore had to be made under the ECA and within 6 years of that date. The plaintiff filed his original proceedings, which were principally claims for breach of contract, on 27 January 2005 being just 4 days short of the 6 year time limit. Those proceedings were commenced, however, in the Employment Tribunal which had no jurisdiction to entertain them. While the Employment Court did have jurisdiction to hear and determine claims for breach of contract under the ECA, the 6 year limitation period meant it was now too late for the plaintiff to commence proceedings founded on such claims in this jurisdiction. (para 37)
(3) To the extent that the plaintiff’s contended personal grievance was based on issues other than breach of contract, the position was arguably different. The beginning of the 90 day period is the first time at which the employee can reasonably be expected to take steps to have his or her personal grievance considered. That should also be regarded as the time at which the cause of action embodied in the personal grievance accrues. (paras 38-40)
(4) The plaintiff could not raise the complaint that there was unjustifiable disparity between his salary and that of comparable colleagues without some knowledge or indication of what the salaries of his colleagues were. Thus, the present case was a case to which the alternative starting point for the 90 day period, that is when it “came to the notice of the employee”, applied. (para 43)
(5) Knowledge of his colleagues’ fee budgets and of the 4.5 to 1 ratio was all that was required for the plaintiff to properly raise a personal grievance about the level of his 1999 salary. On the plaintiff’s own evidence, he had that knowledge by February 2001. The Court therefore fixed the date on which the 90 day period began as 1 February 2001. (para 53)
The cause of action in respect of the plaintiff’s concerns about the 1999 performance review also arose on 1 February 2001, and the matter fell to be determined in accordance with the provisions of the ERA rather than the ECA. (para 54)
(7) The plaintiff did not raise a personal grievance during the applicable 90 day period. The defendant did not consent to the late submission by the plaintiff of his personal grievance. (paras 61, 70)
Result:
Challenge dismissed ; Costs in favour of defendant (quantum reserved).
Statutes considered:
ECA s33(2)
ECA s93(1)
ECA s95
ECA First Schedule, cl3
ERA s101(ab)
ERA s114
ERA s114(1)
ERA s179
ERA s245
ERA s248
Interpretation Act 1999 s5
Limitation Act 1950 s4
Limitation Act 1950 s4(7)
Privacy Act 1993
Words and phrases:
Came to the notice of the employee.
Cases referred to in judgment:
Creedy v Commissioner of Police [2006] 1 ERNZ 517
Drayton v Foodstuffs (South Island) Ltd [1995] 2 ERNZ 523
Murray v Morel & Co Ltd [2006] 2 NZLR 366 (CA)
Paul v Capital and Coast District Health Board [2005] ERNZ 197
Phillips v Net Tel Communications Ltd [2002] 2 ERNZ 340
Robertson v IHC New Zealand Inc [1999] 1 ERNZ 367
Ruebe-Donaldson v Sky Network Television Ltd (No1) [2004] 2 ERNZ 83
Tippins v Trust Bank New Zealand Ltd unreported, Judge Travis, 4 May 1994, AEC
19/94
Trustees Executors Ltd v Murray & Ors [2007] NZSC 27
Warburton v Mastertrade Ltd [1999] 1 ERNZ 636
Pages: 3
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Commissioner of Police v Creedy
CA 234/06
Heard: 13 Jun 2007, Wellington
Judgment Date: 24 Jul 2007
Court/Authority/Tribunal: William Young P, Hammond and O'Regan JJ
Appearances: CC Inglis, CM Curran-Tietjens ; JA Hope
COURT OF APPEAL – Appeal from Employment Court decision granting respondent leave to bring personal grievances out of time – Employment Court concluded respondent’s belief counsel had raised grievance and no further steps required was exceptional – Practice and procedure – Application for leave to appeal Employment Court’s exceptional circumstances conclusion – s114(4) Employment Relations Act 2000 – Whether exceptional circumstances conclusion wrong in law – Whether Employment Court wrong to conclude s12 Police Act 1958 inquiry not immune from challenge – HELD – Exceptional circumstances test required more than just meritorious reason for not having raised grievance – Clients normally relied on legal advisors and although close personal relationship between client and counsel unusual that was not material – s12 inquiry not open to review in personal grievance proceedings – Application granted – Appeal allowed – Sworn police officer (Sergeant)
This was a successful appeal and application for leave to appeal an Employment Court decision (see: [2006] 1 ERNZ 517).
The respondent police sergeant was found guilty of a number of misconduct charges by an inquiry established by the appellant under s12 Police Act 1958 (“s12 inquiry”).
Before the appellant decided what sanction should be imposed the respondent was permitted to retire in December 2001. Before the substantive hearing of the misconduct charges the respondent’s barrister sent a letter to the District Commander, stating that “pending the final determination of the disciplinary proceedings, [the respondent] reserves his rights to pursue this personal grievance in due course”.
In January 2003 the respondent lodged a statement of problem, alleging unjustified disadvantage and constructive dismissal. The Employment Relations Authority determined both claims were not raised within the required 90 day period and there were no exceptional circumstances which warranted granting leave to bring the claims out of time.
The respondent successfully challenged that decision in the Employment Court which held that the respondent’s grievances were raised out of time but granted leave to bring the grievances. The unjustified disadvantage grievance was not raised within time by reason of the exceptional circumstances set out in s115(b) Employment Relations Act 2000 (“ERA”). The unjustified dismissal grievance could proceed because the plaintiff honestly believed, acting on what he understood his barrister told him, that it was unnecessary to raise any further grievance. In that regard the Court noted Parliament intended by enacting s115(b) ERA to negate certain findings in Wilkins v Fortune (cited below). The Court also noted the respondent’s unusual relationship and particular dependence on his barrister. For a period the barrister lived with the respondent who was the barrister’s only client. Finally, the Court held the s12 inquiry was an integral part of a dismissal process and therefore not immune from challenge in personal grievance proceedings.
The appellant sought leave to appeal the Employment Court’s conclusions in relation to the unjustified dismissal grievance and s12 inquiry. The Court of Appeal granted leave regarding the s12 inquiry but reserved the question of whether leave should be granted on the exceptional circumstances issue for final determination at the substantive hearing (see: [2006] 1 ERNZ 886).
Held
(1) The exceptional circumstances test requires more than just a meritorious reason for not having raised the grievance in a timely way. The exceptional quality of the relevant circumstances must be in respects which are relevant to the evaluative exercise in issue. Since clients normally rely on their legal advisers, the “exceptionality” of the legal and personal relationship between the respondent and his barrister was not material to the s 114(4) ERA exercise. (para 25)
(2) The Wilkins v Fortune (cited below) test had not been overtaken by a new legislative scheme under the ERA. Obviously if a case was within s115 ERA, the Wilkins v Fortune test did not have to be independently satisfied. But outside the situations provided for by s114 ERA, there was no reason to suppose that the phrase “exceptional circumstances” had a meaning which differed from its meaning determined in Wilkins v Fortune. (para 26)
(3) The Court granted leave to appeal on the question of whether the Employment Court’s conclusion as to “exceptional circumstances” was wrong in law and the appeal on that question was allowed. The unjustified dismissal claim was out of time. (paras 27, 51, 52)
(4) The person conducting the s12 inquiry did not act on the direction of the appellant. The idea underpinning the s12 process was that the decision-maker must be someone other than the appellant. Since the powers which the inquirer exercised were not those of the appellant, it could not have been acting as his agent or delegate. (para 49)
(5) There was no explicit provision in either the Police Act 1958 or the ERA on which the inquirer’s actions might be attributed to the appellant. Such attribution was not implicit in the legislation. The Employment Court was wrong to conclude that the actions of the person conducting the s12 inquiry could be attributed to the appellant and thus wrong to conclude that they were open to review in personal grievance proceedings. (paras 49, 50)
Result:
Application granted (leave to appeal) ; Appeal allowed ; Costs in favour of appellant ($6,000 plus disbursements).
Statutes considered:
ECA s33(4)
ERA s96
ERA s103(1)(a)
ERA s103(1)(b)
ERA s114
ERA s114(4)
ERA s115
ERA s115(b)
ERA Part 9
Police Act 1958 s5
Police Act 1958 s5(5)
Police Act 1958 s5A(1)
Police Act 1958 s12
Police Act 1958 s87(1)
Police Regulations 1992
State Sector Act 1988 s56
State Sector Act 1988 s58
Cases referred to in judgment:
Creedy v Commissioner of Police [2006] 1 ERNZ 517 (EC)
Commissioner of Police v Creedy [2006] 1 ERNZ 886 (CA)
Wilkins & Field Ltd v Fortune [1998] 2 ERNZ 70; (1998) 5 NZELC 95,793 (CA)
Telecom New Zealand Ltd v Morgan [2004] 2 ERNZ 9
Commissioner of Police v Moore [2002] 2 NZLR 83; [2001] 1 ERNZ 638 (CA)
Petersen v Board of Trustees of Buller High School [2002] 1 ERNZ 139
AJ Burr Ltd v Blenheim Borough Council [1980] 2 NZLR 1
Smith v Attorney-General for & on behalf of Commissioner of Police [2005] 1 ERNZ 699
Pages: 3
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Terry Young Ltd v NZ Engineering, Printing & Manufacturing Union Incorporated
CC 15/07
Heard: 21 Jun 2007, Christchurch
Judgment Date: 25 Jul 2007
Court/Authority/Tribunal: Colgan,CJ
Appearances: JR Copeland ; JA Wilton
NON DE NOVO CHALLENGE TO DETERMINATION OF EMPLOYMENT RELATIONS AUTHORITY – Statutory interpretation – s20 Employment Relations Act 2000 – Whether workplace discussions with union officials limited to discussions with employees individually – HELD – Discussions not confined to discussions with single individual employees – Collective discussions included – Challenge dismissed – COSTS – Test case – No order for costs
This was an unsuccessful non de novo challenge to a determination of the Employment Relations Authority which held discussions under s20 Employment Relations Act 2000 encompassed individual and collective discussions.
The parties were involved in a dispute about union access to the workplace. The plaintiff challenged a question of law decided by the Employment Relations Authority. The issue was whether, when a union exercises rights of access to a workplace under s20 of the Employment Relations Act 2000 (“ERA”), the law limits discussions by the union official to employees individually.
The plaintiff submitted that a proper interpretation of s20 ERA was that such discussions were restricted to discussions with single individual employees at any one time.
Held
(1) Union access to workplaces under s20 ERA is generally expressed to be for purposes that are collective rather than individual. It is correct that individualistic purposes are contemplated as well as collective ones. Those references do not dictate that the union representative may only speak to one union member or potential union member at a workplace. (paras 8, 10-11)
(2) Discussions with employees undertaken by union officials entering workplaces under s20 ERA are not confined to discussions with single employees individually but include discussions with employees collectively. (para 15)
Result:
Challenge dismissed ; No order for costs.
Statutes considered:
ECA
ERA s3
ERA s12
ERA s20
ERA s20(1)(a)
ERA s20(2)(a)
ERA s20(2)(b)
ERA s20(2)(d)
ERA s20(2)(e)
ERA s20(3)
ERA s20(3)(a)
ERA s20(3)(b)
ERA s20(3)(c)
ERA s20(4)
ERA s20(5)
ERA s21
ERA s21(1)(a)
ERA s26
ERA Part 4
Employment Relations Amendment Act (No 2) 2004 s9
Interpretation Act 1999 s4
Interpretation Act 1999 s4(1)(b)
Interpretation Act 1999 s33
Cases referred to in judgment:
Foodstuffs (Auckland) Ltd v National Distribution Union Inc [1995] 1 ERNZ 110(CA)
Service Workers Union of Aotearoa Inc v Southern Pacific Hotel Corporation (NZ)Ltd [1993] 2 ERNZ 513
Pages: 2
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Finau & Ors v Southward Engineering Company Ltd
WC 17/07
Heard: 16 Nov 2006, Wellington
Judgment Date: 25 Jul 2007
Court/Authority/Tribunal: Full Court
Appearances: JA Wilton ; TP Cleary, E Brown
REFERRAL OF QUESTION OF LAW – Interpretation of “work of a striking or locked out employee” – Whether employee who refuses to do work of striking employee becomes a party to the strike and liable to suspension – Whether individual union members become parties to the strike by reason of union membership – ss 81, 87, 97 Employment Relations Act 2000 – HELD – Employer can only direct nonstriking employees to do work they would regularly perform – Lawful refusal to do work does not make employee a party to the strike and liable to suspension – Mere union membership not sufficient to make union member a party to the strike – Action and intent necessary
This was a referral of a question of law from the Employment Relations Authority.
During strike action, the respondent instructed two applicant employees to operate a certain machine. They refused because they did not want to perform the work of striking operators. The defendant suspended the two applicants as parties to the strike. The two applicants were trained to operate the machine and did so from time to time when the usual operators were unavailable. Their employment agreements permitted the respondent to require them to transfer to other jobs within the scope of its operations if they were competent to perform those jobs.
The applicants submitted that “work of a striking…employee” meant the particular work the striking employee would have been doing had he or she not been on strike. Further, that an employee had a right to refuse to do the work under s97 Employment Relations Act 2000 (“ERA”) and such refusal did not mean the employee was on strike and liable to suspension.
The respondent submitted that it had express or implied rights to redeploy its employees, and employees who refused redeployment had reduced the normal performance of their work and become parties to the strike. If the work to which the employees were redeployed could be described as their own work then s97 ERA did not apply. Finally, an employee could become a party to a strike and liable to suspension as a result of membership of a union, whose members were striking.
Held
(1) The proper interpretation of the s97(2) ERA expression “work of a striking ... employee” is the type of work usually done by a worker who is on strike. The “type of work” approach would enable employers to direct non-striking employees to do particular tasks within the range of work they normally perform but would require the agreement of those employees to do work they do not normally perform. Work which an employee normally performs comprises tasks which the employee regularly or routinely performs in the course of employment. The key is what the employee actually does as a matter of practice, rather than what may be contained in a job description or otherwise be provided in an employment agreement. (paras 24, 30-31)
(2) An employee exercising his or her right under s97(3) ERA to refuse to do the work of a striking employee would not fall within the definition of “strike” in s81(1) ERA. As a result, the employee would not be open to suspension under s87 ERA. (para 42)
(3) For any particular employee to become a party to a strike it has to be shown that he or she was not only a party to the original agreement to strike but has continued to support the strike as it occurs. Mere membership of a union whose members have voted to take strike action is not sufficient without more to establish that any particular employee is a party to the strike. The issue is then one of fact. If that employee goes on to behave in any of the ways described in s81(1)(a) ERA in accordance with the resolution to strike then he or she will be a party to the strike, provided that this conduct is accompanied by the mental element described in s81(1)(b) ERA. (paras 47, 49-50)
Comment:
(1) For the purposes of the present case at least, there was no material distinction between a striking employee and a locked out employee. Although the Court referred to employees on strike, the same principles apply to locked out employees. (para 17)
Result:
Question answered ; Costs to lie where they fall.
Statutes considered:
ERA s3(a)(ii)
ERA s54(3)(b)
ERA s65(2)(b)
ERA s81
ERA s81(1)
ERA s81(1)(a)
ERA s81(1)(b)
ERA s87
ERA s97
ERA s97(2)
ERA s97(3)
ERA s97(3)(a)
ERA s97(3)(b)
ERA s97(3)(c)
ERA Part 8
Interpretation Act 1999 s5
Words and phrases::
Work of a striking or locked out employee.
Cases referred to in judgment:
Carter Holt Harvey Ltd v National Distribution Union Inc [2002] 1 ERNZ 239
Heke v Attorney-General in respect of the Department of Corrections [1998] 1 ERNZ
583
National Distribution Union v General Distributors Ltd [2006] 1 ERNZ 790
National Distribution Union Inc v Carter Holt Harvey Ltd [2001] ERNZ 822
New Zealand Amalgamated Engineering Printing and Manufacturing Union Inc v Air
Nelson Ltd CC 12/07, 17.06.07
Other workers/site names etc:
Maiava, Reynard, Aloisio, Downs, Smith, Makara
Pages: 3
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WC 18/07
Heard: 15 Mar 2007, Wellington
Judgment Date: 1 Aug 2007
Court/Authority/Tribunal: Full Court
Appearances: P Cranney, A Hughes ; PC Chemis, HP Kynaston
PROCEEDINGS REMOVED FROM EMPLOYMENT RELATIONS AUTHORITY – Collective bargaining – Plaintiff initiated bargaining with defendants for multiemployer collective agreement (“MECA”) – Whether defendants obliged to conclude MECA – Whether counter-initiation of bargaining permissible – Statutory interpretation – s33, Schedule 1B Employment Relations Act 2000 – HELD – Requirement to conclude a collective agreement – MECA not required – Counter initiation of bargaining not permitted – Questions answered
These were proceedings removed from the Employment Relations Authority.
The plaintiff union’s members included employees of the 16 defendant district health boards and four defendant companies that contracted services to the health boards. The plaintiff initiated bargaining with all the defendants seeking a multi-employer collective agreement (“meca”). All the defendants initially wanted single-employer collective agreements (“secas”). The health boards later signalled willingness to be parties to a meca but opposed the inclusion of the defendant companies.
The plaintiff submitted that the Employment Relations Act 2000 (“ERA”) requires parties to collective bargaining, both generally and in the public health sector, to settle a meca if stipulated for by the union and therefore the defendants were acting contrary to law by refusing to agree to a meca. The plaintiff further submitted that the ERA does not contemplate or permit counter-initiation of bargaining by an employer against whom collective bargaining has been initiated by a union.
Held
(1) Parliament intended clause 6(1) of Schedule 1B to the ERA to mean that parties in the public health sector must support collective bargaining including bargaining for mecas. Parties in bargaining affected by Schedule 1B are obliged to take as their starting point and general approach to ongoing bargaining that both collective bargaining generally and bargaining for mecas in particular should be striven for and attained unless it is neither practical nor reasonable to do so. To “support” is to have a commitment to, but not an absolute or irrevocable commitment or a commitment at all costs. (paras 43, 54)
(2) As re-enacted by the Employment Relations Amendment Act (No 2) 2004, s33 ERA goes no further than to make it an incident of the duty of good faith in s4 ERA that a union and an employer bargaining for a collective agreement conclude such an agreement unless there is a genuine reason, based on reasonable grounds, not to. The requirement is to conclude a collective agreement that may include a meca but, equally, may include a seca or one of the other varieties of collective permutations that the ERA allows. Section 33 does not go so far as to mandate the conclusion of a meca even if this has been stipulated for by the union and even if the parties must, as in the present case, “support” bargaining for a meca. (para 66)
(3) Under the scheme of the ERA, bargaining for a collective agreement between the same parties covering the same employees can be initiated only once. The parties are then required to conclude a collective agreement unless there are genuine reasons based on reasonable grounds not to. Counter-initiation is not allowed. (paras 76, 84)
Result:
Questions answered ; Costs reserved.
Statutes considered:
ERA s3(a)(ii)
ERA s3(a)(iii)
ERA s3(a)(iv)
ERA s3(b)
ERA s4
ERA s31
ERA s31(aa)
ERA s31(b)
ERA s31(d)
ERA s31(e)
ERA s32(1)(a)
ERA s32(1)(b)
ERA s32(1)(c)
ERA s32(1)(ca)
ERA s32(1)(d)(i)
ERA s32(1)(d)(ii)
ERA s32(1)(d)(iii)
ERA s32(1)(e)
ERA s32(3)(a)
ERA s33
ERA s33(1)
ERA s34
ERA s35
ERA s40
ERA s40(1)
ERA s40(2)
ERA s41
ERA s42
ERA s42(1)
ERA s42(2)
ERA s43
ERA s44
ERA s44(1)(a)
ERA s45
ERA s45(2)
ERA s46
ERA s47
ERA s48
ERA s49
ERA s50
ERA s50A
ERA s50B
ERA s50C
ERA s50D
ERA s50E
ERA s50F
ERA s50G
ERA s50H
ERA s50I
ERA s50J
ERA s51(1)
ERA s51(2)
ERA s100A
ERA s100D
ERA s100E
ERA s100E(1)
ERA s100E(2)
ERA s100E(2)(a)
ERA s100E(2)(b)
ERA Part 5
ERA Schedule 1B cl1(1)
ERA Schedule 1B cl2
ERA Schedule 1B cl2(c)
ERA Schedule 1B cl4
ERA Schedule 1B cl5
ERA Schedule 1B cl6
ERA Schedule 1B cl6(1)
ERA Schedule 1B cl7
ERA Schedule 1B cl8
ERA Schedule 1B cl9
ERA Schedule 1B cl10
ERA Schedule 1B cl13(1)
Employment Relations
Amendment Act (No2) 2004 s12
Employment Relations Amendment Act (No2) 2004 s36
Interpretation Act 1999 Part 2
Interpretation Act 1999 s5(1)
LRA s134
New Zealand Bill of Rights Act 1990 s4
New Zealand Bill of Rights Act 1990 s5
New Zealand Bill of Rights Act 1990 s6
New Zealand Bill of Rights Act 1990 s17
New Zealand Bill of Rights Act 1990 s29
Words and phrases:
Counter-initiation ; Support.
Cases referred to in judgment:
Association of University Staff Inc v Vice-Chancellor of the University of Auckland
[2005] ERNZ 224
Epic Packaging Ltd v NZ Amalgamated Engineering, Printing & Manufacturing
Union Inc [2006] 1 ERNZ 617
Gibbs v Crest Commercial Cleaning Ltd [2005] ERNZ 399
New Zealand Public Service Association Inc v Southland Regional Council [2005]
ERNZ 1008
NZ Air Line Pilots Assn IUOW v Gray and Ors [1989] 2 NZILR 454
R v Hansen [2007] NZSC 7; [2007] 3 NZLR 1
R v Oakes [1986] 1 SCR 103; (1986) 26 DLR (4th) 200 (SCC)
R v Rochon 2003 CanLII 9600; (2003) 173 CCC (3d) 321
Toll New Zealand Consolidated Ltd v Rail & Maritime Union Inc [2004] 1 ERNZ 392
Pages: 4
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Electrotech Controls Ltd v Rarere
WC 21/07
Heard: 6 Jul 2007, Napier
Judgment Date: 5 Sep 2007
Court/Authority/Tribunal: Shaw, J
Appearances: MB Lawson, EC Fackney ; D Oliver
NON DE NOVO CHALLENGE AND CROSS-CHALLENGE TO DETERMINATION OF EMPLOYMENT RELATIONS AUTHORITY – Defendant continued to work after fixed term agreement ended – Whether same nature and terms of employment – HELD – Plaintiff waived fixed term requirement – Parties remained contractually bound to same terms and conditions – Apprentice electrician
This was a non-de novo challenge and cross-challenge to a determination of the Employment Relations Authority which held that the defendant was constructively dismissed.
The defendant was employed in 2001 as an apprentice electrician. She was placed on a series of fixed term agreements and a core agreement for the position. Each agreement fixed the term of employment by reference to the defendant achieving a qualification as an electrician. The core agreement provided that termination of the fixed term agreement would occur automatically on the expiry of 8,000 hours or proof of completion of her National Certificate, whichever was earlier.
The defendant completed 8,000 hours and all the units towards her National Certificate. While awaiting advice that she had completed all requirements satisfactorily, she continued carrying out the same duties she previously performed.
In May 2005 the parties were advised the defendant had satisfactorily completed the requirements for the National Certificate. However, she had not yet completed the required exam for becoming a registered electrician. In June 2005 the defendant was given notice of termination of her agreement and advised that she could apply for a trade assistant position. She was offered casual employment as a trade assistant until she completed her exams. The defendant believed her employment was permanent and that she should not have been given notice of termination then offered casual work. She withdrew her application for the trade assistant position.
The plaintiff brought a personal grievance. The Employment Relations Authority determined that the plaintiff was prepared to continue employing the defendant as a trade assistant. She was entitled to ongoing employment and her resignation constituted constructive dismissal.
The issue before the Court was the nature and terms of the defendant’s employment after the end of the fixed term. The plaintiff submitted that, apart from the indeterminate duration, the terms of employment remained the same. The defendant submitted that when the fixed term ended she commenced work as a trade assistant.
Held
(1) When the defendant had completed her apprenticeship the plaintiff was entitled to terminate the contract immediately but it waived the fixed term requirement to enable her to continue her apprenticeship agreement until her qualification came through. The defendant acquiesced to that by continuing to work and receive payment. While her circumstances had changed because of her qualification, the agreement had not. The parties were still bound by the fixed term agreement and the core agreement which clearly treated her as an apprentice. (paras 30, 36)
(2) There was no arrangement that the defendant would stay on in a different role. It was up to the parties to negotiate a new agreement in the light of her changed status. Until that was done, she remained contractually bound as an apprentice subject to the same conditions of employment as an apprentice. (paras 31, 37)
Result:
Challenge granted ; Costs reserved.
Statutes considered:
ERA s66
Cases referred to in judgment:
Auto-Movements (NZ) Ltd v Eveleigh WC 15/07, 18 May 2007
New Zealand Railways Corporation v Fletcher Development and Construction Ltd
(1990) 1 NZ ConvC 190,464
Varney v Tasman Regional Sports Trust CC 15/04, 23 July 2004
Pages: 2
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Maritime Union of New Zealand Inc & Ors v TLNZ Ltd & Anor
AC 51/07
Heard: 5 Sep 2007, Auckland
Judgment Date: 7 Sep 2007
Court/Authority/Tribunal: Colgan, CJ
Appearances: S Mitchell, H White ; CH Toogood QC, N Dines
PRACTICE AND PROCEDURE – Admissibility of evidence – Expert evidence – Opinion evidence – Plaintiff alleged defendant’s witnesses proposed to give opinion evidence outside their expertise and about ultimate issues – Alleged witnesses lacked independence and evidence not detached and balanced – HELD – Admissibility of evidence governed by s189(2) Employment Relations Act 2000 – Evidence Act 2006 important source of reference – Court considered carefully and followed relevant Evidence Act provisions – Opinion evidence not inadmissible purely because about an ultimate issue – Focus on whether substantially helpful – Court best placed to determine ultimate issues – Conflict of interest did not automatically disqualify expert – Opinion evidence that was partial or amounted to advocacy inadmissible – Certain evidence ruled inadmissible – Stevedores and supporting employees
This was an interlocutory decision in which the Court ruled certain evidence inadmissible.
The defendants were stevedoring companies whose employees worked on wharves and cargo ships loading and discharging cargo and providing support services. The defendants wanted to introduce a drug and alcohol testing policy which was opposed by the plaintiff union, whose members were employed by the defendant. The plaintiff brought proceedings, removed from the Employment Relations Authority, alleging the intended policy would be a breach of the relevant collective employment agreements and a breach of the statutory obligation of good faith.
The defendants intended to call a number of expert witnesses. The first and third had been involved in the creation and/or preparation of the policy in dispute.
The plaintiffs alleged that the witnesses: (i) proposed to give opinion evidence about matters outside their expertise; (ii) proposed to give evidence about the ultimate issues for decision by the Court; and, (iii) advocated for a position and did not give evidence that was independent, detached and balanced. The plaintiff alleged the first and third witnesses lacked the necessary independence to be experts because each had a financial interest in the outcome of the proceeding.
Held
(1) The Employment Court was notable by its absence from the schedule of courts to which the Evidence Act 2006 applied expressly. The Evidence Act’s principles and contents were nevertheless an important source of reference whenever the admissibility of evidence was challenged or otherwise in question. They would affect and guide the exercise of the equity and good conscience test under s189(2) of the Employment Relations Act 2000 (“ERA”). (paras 13, 14, 27)
(2) The Court proposed to primarily follow the relevant provisions in the Evidence Act 2006. Section 25(3) provided that if an opinion by an expert was based on a fact that was outside the general body of knowledge that made up the expertise of the expert, the opinion may be relied on by the fact-finder only if the fact was or will be proved or judicially noticed in the proceeding. Qualification under the Evidence Act as an expert witness did not allow the giving of opinion evidence beyond the parameters of that expertise. (paras 30, 31)
(3) Rather than focusing on whether the opinion evidence went to the ultimate issue, s25(1) Evidence Act focused on whether the fact-finder was likely to obtain substantial help from the opinion in understanding other evidence or in ascertaining any fact that was of consequence to the determination of the proceeding. Section 25(2) provided that an opinion by an expert was not inadmissible simply because it was about an ultimate issue to be determined in the proceeding. Ultimate issues were now no different to others when it came to opinion evidence on them. (paras 32, 33)
(4) Most if not all of the ultimate issues were questions of law and fact, either about the interpretation and application of collective employment agreements, or statutory provisions. Those were matters that the Court was both well versed in determining and best placed to decide. (para 33)
(5) The presence of a conflict of interest did not disqualify automatically an expert. Rather, the question was whether the expert’s opinion was independent both of the parties and of the pressures of the litigation. There was a dividing line drawn between persuasive/party-supportive opinion evidence (admissible) and opinion evidence that was partial and/or amounted to advocacy for the party calling it (inadmissible). Issues as to whether the outcome of the case would or would not enable the expert witness to reinforce or pursue a commercial opportunity were components of the partiality/advocacy tests. (paras 35, 39, 43)
(6) The first witness intended to give opinion evidence about the quality of a policy in the development of which she had been significantly instrumental. The Court concluded that her evidence as currently drafted would not meet the conduct test under s26(1) Evidence Act and Schedule 4 to the High Court Rules. The Court was not satisfied that the first witness was not an advocate for the defendants or that her intended opinion evidence was impartial. She did not qualify as an expert witness for the purposes of giving such opinion evidence. (para 66)
(7) The second witness was not able to give certain opinion evidence including as to the invasive or personal privacy elements of urine testing. The third witness and some of his evidence were at risk of failing to meet the statutorily required impartiality of an expert witness or, put another way and to adopt another test, of being seen as advocacy for the defendants who have engaged him. There was, however, insufficient material before the Court to reach that conclusion. Thus the evidence was provisionally admissible under s14 of the Evidence Act and the Court reserved the question of the admissibility of the challenged parts of it until he had been cross-examined. (paras 75, 85)
Comment:
(1) Regulation 6 of the Employment Court Regulations 2000 meant the relevant provisions of the High Court Rules 1985 were engaged. Rules 330A, 330B, 330C and 330D, dealing with expert witnesses, were applicable, as was Schedule 4 to the High Court Rules. (para 15)
Result:
Orders accordingly ; No order for costs
Statutes considered:
Employment Court Regulations 2000 r6
ERA s189(2)
Evidence Act 2006 s4
Evidence Act 2006 s6
Evidence Act 2006 s7
Evidence Act 2006 s8
Evidence Act 2006 s14
Evidence Act 2006 s23
Evidence Act 2006 s24
Evidence Act 2006 s25
Evidence Act 2006 s25(1)
Evidence Act 2006 s25(2)
Evidence Act 2006 s25(3)
Evidence Act 2006 s26
Evidence Act 2006 s26(1)
High Court Rules R330A
High Court Rules R330A(2)
High Court Rules R330B
High Court Rules R330C
High Court Rules R330D
High Court Rules Schedule 4
Cases referred to in judgment:
Diagnostic Medlab Ltd v Auckland District Health Board unreported, Asher J, 5
December 2006, HC Auckland, CIV-2006-404-4724
National Justice Compania Naviera SA v Prudential Assurance Co Ltd [1993] 2
Lloyd's Rep 68 (QBD)
NZ Amalgamated Engineering Printing and Manufacturing Union Inc v Air New
Zealand Ltd [2004] 1 ERNZ 614
Toth v Jarman [2006] 4 All ER 1276 (CA)
Other workers/site names etc:
Nee Nee, Toleafoa, Smart ; TLNZ Auckland Ltd
Pages: 3
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The Chief Executive of The Department of Corrections v Tawhiwhirangi
WC 14A/07
Heard: 16 Jul 2007, Wellington
Judgment Date: 13 Sep 2007
Court/Authority/Tribunal: Shaw, J
Appearances: PJ Radich, K Spackman ; BA Buckett
DE NOVO CHALLENGE AND CROSS-CHALLENGE TO DETERMINATION OF EMPLOYMENT RELATIONS AUTHORITY – Unjustified dismissal – Serious misconduct – Plaintiff alleged defendant assaulted prisoner – Defendant alleged plaintiff breached common law and statutory obligations – HELD – Standard of fair and reasonable employer analogous to standard of care applied in negligence that considers reasonable skill and knowledge of defendant – Relevant factors include size of workplace, number of employees, available resources and employer’s statutory and public interest obligations – Investigation not procedurally fair – If alleged assault occurred would have been justified in circumstances – Dismissal unjustified – Remedies deferred until further hearing – Challenge and cross-challenge dismissed – Principal Corrections Officer
This was an unsuccessful challenge by the plaintiff to a determination of the Employment Relations Authority which held that the defendant’s dismissal was unjustified and an unsuccessful cross-challenge by the defendant involving allegations that the plaintiff had breached its common law and statutory obligations
The defendant was employed by the plaintiff as a Principal Corrections Officer. A prisoner asked the defendant to bring contraband into the prison. The defendant refused and ordered the prisoner to leave his office. The defendant followed the prisoner out of the office. As the defendant and prisoner exited the office, another officer believed the prisoner was going to attack the defendant and initiated control and restraint on the prisoner.
A Unit Manager conducted an initial inquiry and concluded it was probable the defendant had assaulted the prisoner prior to the control and restraint. The defendant was suspended. The defendant said that he had placed his hand on the prisoner’s shoulder to guide him but denied striking the prisoner. The prisoner did not originally complain of an assault prior to the control and restraint.
An investigation was commenced and a number of interviews were held. The investigator found on a preliminary basis that the defendant was guilty of serious misconduct and should be dismissed (“the investigation report”). After receiving the investigation report, viewing the video footage and following a series of meetings in which the defendant’s representatives made submissions, the regional manager dismissed the defendant.
The defendant submitted that there were a number of procedural flaws in the investigation, including that the defendant was not given proper notice of the specific allegations against him and that the regional manager had formed an unwavering view based on the investigation report and had refused to consider alternative interpretations.
Held
(1) The employer’s actions are measured against the standard of what a fair and reasonable employer would have done in all the circumstances. This refers to a fair and reasonable employer in the position of the plaintiff. This approach is similar to the way the standard of care is assessed in the common law of negligence which acknowledges the reasonable skill and knowledge of a person in the position of the defendant. (para 9)
(2) In assessing generally whether the actions of an employer were fair and reasonable, relevant factors are the size of the workplace and the number of employees employed, the nature and quality of the resources available to the employer including access to specialist human resources advice, and any other statutory or public interest obligations on the employer. Because of its particular characteristics and legislative and policy obligations, the plaintiff was obliged to act with a high standard of fairness and reasonableness. (paras 11, 144)
(3) The mere application of force by a prison officer on a prisoner does not establish serious misconduct. In order to assess whether it is justified the decision maker must properly inquire into the state of mind of the officer at the time the physical force was used. There was no consideration in the employment investigation or the preliminary findings of the defendant’s reasons for acting as they found he had. (paras 146, 150)
(4) The employment investigation was not conducted fairly. It was in breach of the plaintiff’s policy requiring investigations to be procedurally fair by informing the employee of the details of the allegations and evidence against him. It did not afford him a real opportunity to explain and the regional manager closed his mind to any alternative explanation. (paras 132, 155)
(5) The decision to dismiss would not have been a reasonable response even if the defendant had used the physical force as alleged. That was because of the defendant’s description of the attitude of the prisoner. There was a strong possibility that the prisoner was passively resisting the defendant’s instruction. It was, therefore, reasonably open to a fair-minded employer to conclude that even if the alleged application of force by the defendant occurred it was in circumstances which did not justify dismissal. The regional manager may have reasonably concluded there had been breaches of the code of conduct but not serious misconduct. (paras 157-160)
(6) In the light of the outcome of the challenge it was not necessary to discuss the cross-challenge in any detail except to note that on the evidence none of the cross challenges would have been made out. In addition, although the Court found that the plaintiff unjustifiably dismissed the defendant, there was no evidence that in doing so it was in breach of any statutory or contractual obligation to the extent that warranted any penalty. (para 5)
Result:
Challenge dismissed ; Cross-challenge dismissed ; Remedies deferred until further hearing ; Costs reserved
Statutes considered:
Corrections Act 2004 s83
ERA s4(1A)
ERA s103A
Cases referred to in judgment:
Air New Zealand Ltd v Hudson [2006] 1 ERNZ 415
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
Hamilton v Papakura District Council [2000] 1 NZLR 265
Lawless v Comvita New Zealand Ltd [2005] ERNZ 861
NZ (with exceptions) Food Processing IUOW v Unilever New Zealand Ltd [1990] 1
NZILR 35
NZ (with exceptions) Shipwrights Union v Honda NZ Ltd [1989] 3 NZILR 82
Timu v Waitemata District Health Board AC 34/07, 7 June 2007
Whitehouse v Jordan [1981] 1 WLR 246
X v Auckland District Health Board [2007] ERNZ 66
Pages: 3
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Tawhiwhirangi v The Chief Executive of the Department of Corrections
WC 22/07
Heard: 3, 4 Sep 2007, Wellington
Judgment Date: 14 Sep 2007
Court/Authority/Tribunal: Colgan, CJ
Appearances: B Buckett ; P Radich, E Warden
PROCEEDINGS REMOVED FROM EMPLOYMENT RELATIONS AUTHORITY – Practice and procedure – Application by plaintiff for compliance order preventing defendant from further investigating allegations of misconduct – Defendant submitted Court lacked jurisdiction to make order against Crown – Alternatively that plaintiff not entitled to relief – HELD – Jurisdictional argument rejected – Compliance order may be made against Crown employers – Some procedural flaws but just to allow investigation to continue – Application declined – Principal Corrections Officer
This was an unsuccessful application by the plaintiff for a compliance order. The plaintiff was dismissed by the defendant for alleged assault. He brought a personal grievance and the Employment Court found the dismissal unjustified (see: WC 14A/07) (“the substantive decision”). The issue of reinstatement had been deferred.
After the Court hearing but before the substantive decision the defendant alleged that the plaintiff was involved in the theft of a deep fryer and commenced investigation. The plaintiff sought a compliance order to prevent the defendant from undertaking any further investigative or disciplinary procedures in respect of any matter until further order of the Court. The plaintiff also sought findings regarding the defendant’s investigative and disciplinary procedure into the alleged theft.
By consent, the Court made an interim order that the defendant was to take no further steps until the present application could be heard by a different Judge.
The plaintiff submitted that the defendant had breached its obligation of good faith, its own policies and had made a number of procedural errors. The plaintiff also contended he was being subjected to a witch-hunt and the investigation had been undertaken to resist any orders of reinstatement the Court might make.
The defendant submitted that the Court lacked jurisdiction to award the relief sought because it amounted to a quia timet injunction that could not be made against the Crown. Alternatively, it contended the plaintiff was not entitled to the relief sought.
Held
(1) The Court is empowered to enforce the good faith obligations by compliance order if it is satisfied that a defendant has not acted in good faith. A compliance order may, in an appropriate case, include an order that a party desist from conduct that is in breach of the statutory requirements. That may include, theoretically at least and in an appropriate case, a direction to cease an activity that is in breach of the statute. The same extends to contractual breaches. Therefore, if the employer has not followed his own process, that can be the subject of a compliance order. (para 2)
(2) A statutory compliance order can be made against a range of persons including Crown employers. The Court did not accept the defendant’s jurisdictional submission. (paras 3-4)
(3) The defendant could not reasonably ignore the allegation. The most just course of action was to permit the defendant’s investigative process to continue and not to order its permanent stay. Despite errors having been identified by the plaintiff, a compliance order was not warranted to prevent further non-compliance. The consent interim order was set aside. (paras 45 and 61)
(4) The matters presently being investigated and that had been before the Court in the present application could not be grounds to resist the plaintiff’s reinstatement on its merits in the earlier proceedings. (para 72)
Result:
Application dismissed ; Orders accordingly ; Costs reserved
Statutes considered:
ERA s4
ERA s4(1)(b)
ERA s4(1A)(b)
ERA s4(1A)(c)
ERA s137
ERA s137(1)(a)(i)
ERA s137(1)(a)(ii)
ERA s161(1)(n)
ERA Part 1
ERA s178
New Zealand Bill of Rights Act 1990
State Sector Act 1988 s56
Words and phrases:
Directly
Cases referred to in judgment:
Chief Executive of the Department of Corrections v Tawhiwhirangi WC 14A/07, 13
September 2007
Ioane v Waitakere City Council [2003] 1 ERNZ 104
Irvines Freightlines Ltd v Cross [1993] 1 ERNZ 424
Tawhiwhirangi v Attorney-General in respect of Chief Executive, Department of
Justice [1993] 2 ERNZ 546
Pages: 2
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NZ Tramways & Public Passenger Transport Authorities Employees IUOW v Cityline (NZ) Ltd t/a Cityline Hutt Valley & Anor
WC 23/07
Heard: 30 Jul 2007, Wellington
Judgment Date: 19 Sep 2007
Court/Authority/Tribunal: Shaw J
Appearances: P McBride ; PA Caisley
DRAFT HEADNOTE ONLY - CHALLENGE TO DETERMINATION OF EMPLOYMENT RELATIONS AUTHORITY – Plaintiff challenged validity of purported multi employer multi union collective agreement ("MEMUCA") between defendants and two other unions – Applied to Authority for declaration MEMUCA not valid and void ab initio – Authority declined declaration as would have had effect of cancelling MEMUCA, and validity of purported agreement properly tested by application for review – Whether Authority had jurisdiction to declare a document is or is not a collective employment agreement ("CEA") – Case turned on effect of s163 Employment Relations Act 2000 ("ERA") which provided Authority may not make order cancelling or varying CEA or any term of a CEA – Scheme of Part 5 ERA that CEAs must comply with statutory requirements in order to come into force – Section 25 ECA stated if contract contravened Employment Contracts Act 1991("ECA") provisions, contract not unenforceable or of no effect unless expressly provided for in ECA – No equivalent in ERA - Purpose of s163 and s192(1) ERA to prevent Authority or Court from interfering with CEAs in force – Accorded with purposes of ERA that promote orderly collective bargaining - If CEA in force, could not be cancelled or varied and could only be varied by collective bargaining process – If a document not correctly formed under statutory process it did not meet statutory content requirements - Open to question whether such document in fact a CEA in terms of ERA – Possible that a CEA could be held by Court or Authority to be void and unenforceable if grounds properly made out – If CEA found to be valid could not be cancelled or varied - Requests for declaration whether a document a CEA under ERA was not a request to cancel a CEA - Authority could continue with application for declaration – Application for review under s194 ERA only available once right of challenge exhausted.
This was a successful challenge to a determination of the Employment Relations Authority which held that it could not make a declaration whether a collective agreement was valid or not because s163 of the Employment Relations Act 2000 prevented the Authority from making an order cancelling or varying all or part of a collective agreement.
The plaintiff was a party to a single employer collective agreement with each defendant. The defendants then entered into a collective agreement with two other unions (“the WUBCA”).
The plaintiff applied to the Employment Relations Authority for a declaration that the WUBCA was not valid and was void ab initio. The Authority held that to make the requested declaration would be to cancel the WUBCA which was prohibited by s163 of the Employment Relations Act 2000 (“ERA”).
The plaintiff challenged that determination. It submitted that if an agreement is declared void then it never had legal effect. The declaration sought was different from asking the Authority to vary or cancel a collective agreement. The defendants submitted (i) a declaration that the WUBCA had never had legal effect would effectively cancel the collective agreement and that was prohibited by s163 ERA; and, (ii) the Authority was prevented by s161(2) ERA from making any determination relating to bargaining and a declaration of invalidity would effectively interfere with bargaining.
Held
(1) A collective agreement must comply with certain statutory requirements in order to come into force and is only then binding and enforceable. The purpose of s163 and s192(1) ERA is to prevent the Authority or the Court from interfering with a collective agreement that is in force. If a collective agreement is in force it cannot be cancelled or varied under the law relating to contracts and can only be varied by the process of collective bargaining. If a document is not correctly formed under the statutory process and does not meet the statutory content requirements it is open to question whether it is in fact a collective agreement in terms of the ERA. It is therefore possible that a collective agreement could be held by the Court or the Authority to be void, without legal effect, and unenforceable if the grounds are properly made out. If this were the case, then the question of cancellation or variation would not arise. (paras 20, 26-27)
(2) A request for a declaration as to whether a document is or is not a collective agreement in terms of the ERA, is not a request to cancel the agreement. There can only be one of two outcomes. Either it is a collective agreement in terms of the ERA or it is not. If it is not then it is void and of no effect. If it is found to be a valid collective agreement it cannot be cancelled or var
Result:
Challenge granted
Statutes considered:
ECA s25
ERA s5
ERA s51
ERA s52
ERA s54
ERA s54(1)
ERA s56
ERA s56(1)
ERA s61(2)(b)
ERA s161(2)
ERA s163
ERA s184(1A)
ERA s192(1)
ERA s194
ERA Part 5
Words and phrases:
bound ; binding
Cases referred to in judgment:
Fletcher Construction New Zealand Ltd, Dillingham Construction Inc and Ilbau
Gesellschaft (t/a Fletcher Dillingham Ilbau Joint Venture) v New Zealand
Engineering Printing & Manufacturing Union Inc [1999] 2 ERNZ 183
O’Malley v Vision Aluminium Ltd (No 2) [1992] 2 ERNZ 660
Pages: 7
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Waitemata District Health Board v Timu
CA 322/07
Heard: 17 Sep 2007, Wellington
Judgment Date: 20 Sep 2007
Court/Authority/Tribunal: Hammond, Robertson, Arnold JJ
Appearances: A Russell ; G Pollak
COURT OF APPEAL – Practice and procedure – Application for leave to appeal Employment Court decision – Whether applicant breached rules of natural justice – Whether Employment Court substituted its own judgment – Whether obscene or abusive language could be serious misconduct when not so described in applicant’s policy – Whether evidence of earlier incident relevant to remedies – HELD – No deviation from established natural justice principle – Employment Court did not substitute own view – Question concerning obscene or abusive language did not justify intervention – No error in assessing remedies – Application dismissed – Psychiatric nurse
This was an unsuccessful application for leave to appeal to the Court of Appeal.
The respondent was dismissed from his employment with the applicant in July 2004 for allegedly physically assaulting a patient and using abusive language.
The Employment Court held that the investigation of the alleged assault was procedurally unfair as the applicant failed to follow certain natural justice requirements. The Employment Court noted that abusive language could amount to serious misconduct but that it was described in the applicant’s policy as misconduct generally rather than serious misconduct. The Employment Court concluded the respondent’s conduct could not be characterised as serious misconduct.
The proposed questions of law for which leave was sought were: (a) whether the applicant could not rely upon obscene or abusive language which could cause offence as serious misconduct because it was not so described in the relevant policy; (b) whether the applicant’s decision-maker was in breach of the rules of natural justice and thereby failed to conduct a fair or reasonable enquiry when deciding on disputed questions of fact; (c) if, and to what extent, the Employment Court usurped the functions of the applicant and its decision-maker upon an investigation that satisfied natural justice and the requirements of the case by substituting its judgment for that of the applicant; and, (d) whether evidence of an earlier incident was relevant to the remedies claimed by the respondent.
Held
(1) There was no deviation from established principle in the Employment Court’s approach to natural justice. The Employment Court did not substitute its view as to what should occur for an assessment of the procedure adopted. (paras 10, 13)
(2) If the Employment Court was suggesting that obscene or abusive language was never capable of being regarded as serious misconduct justifying dismissal in an absolute and unequivocal sense it would be in error. The Court suspected the Employment Court was speaking in the context of the facts of the case, but even if it were not, the point was not one which would meet the statutory test to justify the intervention of the Court. (para 17)
(3) There was no error of principle in assessing remedies. The matter was an example of the application of non-contentious principle to the facts of the case. The applicant’s view that principles were incorrectly applied to the facts of the case did not create a question of law. (paras 18-20)
Results
Application dismissed ; Costs in favour of respondent ($1,500 plus disbursements)
Statutes considered:
ERA s214(3)
Cases referred to in judgment:
Airline Stewards and Hostesses of New Zealand IUW v Air New Zealand Ltd (1990)
ERNZ Sel Cas 985; [1990] 3 NZLR 549; (1990) 4 NZELC 95,259 (CA)
Timu v Waitemata District Health Board (2007) 4 NZELR 471
W & H Newspapers Ltd v Oram [2000] 2 ERNZ 448; [2001] 3 NZLR 29; (2001) 6
NZELC 96,197 (CA)
Pages: 2
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