JurisdictionNew Zealand
CourtEmployment Court
JudgeG L Colgan
Judgment Date20 December 2011
Docket NumberCRC 16/11
Date20 December 2011

[2011] NZEmpC 172


CRC 16/11

IN THE MATTER OF a challenge to a determination of the Employment Relations Authority


IN THE MATTER OF an appearance objecting to the Court's jurisdiction

Brian Grant
Vice-Chancellor of the University of Otago

Len Anderson, counsel for plaintiff

Barry Dorking, counsel for defendant

Challenge to Employment Relations Authority (“Authority”) decision — personal grievance for unjustified dismissal — parties agreed that Authority would make recommendation under s173A Employment Relations Act 2000 (“ERAct”) (recommendation to parties) — recommendation to become binding if not objected to — extension for objection period agreed to between counsel but plaintiff himself did not agree — defendant then gave written notice that recommendation not accepted and Authority upheld this objection — whether challenge was barred as being a challenge to Authority's procedure — whether there was jurisdiction to extend objection period — whether plaintiff had to personally agree to variation — whether affirmation process had to be repeated in respect of a variation

Held: The issues were: whether the challenge was a challenge to the Authority's procedure and the Employment Court lacked jurisdiction under s179(5) (no challenge to determinations relating to procedure of authority) and s188(4) ERAct (not role of court to advise on authority's procedure or exercise of investigative role); whether there was jurisdiction to extend the objection period; whether the plaintiff had to personally agree to the variation, as opposed to counsel agreeing; and, whether the affirmation process had to be repeated in respect of a variation.

G was not disqualified by s179(5) ERAct from pursing his appeal. His challenge was not one of procedure (how the authority had exercised a power) but rather of jurisdiction (whether the Authority had the power to extend the objection period). The subject matter of the determination was not caught by the section. Section 188(4) ERAct was not engaged because the court was not being asked to determine how the Authority should have acted in the circumstances, but rather whether it was empowered to act as it did.

Parties could agree on a variation to time limits under s173A ERAct. There was no evidence of the extent to which G's lawyers were permitted to act on his behalf without specific instructions. In the circumstances G's lawyer must have had ostensible authority to represent him in the proceedings, except where G was required by statute to be involved. Parties in the Authority could act through their appointed representative who would be assumed to have ostensible authority to bind their client.

A variation agreed by the parties, accepted by the Authority and recorded properly could be made at any time up until the expiry of the period set by the Authority member for objection. It was not accepted that the Authority was required to redo the whole affirmation procedure for the date of variation to be valid. While the period within which to take an objection was a very important part of the affirmation process, it was not more important than any other part of that process. It was not insignificant that it was G, through his counsel, who proposed the extension in the first place, although it was not clear for whose benefit it was proposed.

There had to be an ability for the Authority and the parties to vary the date by which a recommendation under s173A ERAct would become a determination if not objected to. Not to permit any variation could disqualify the parties from recourse to the procedure in circumstances such as delay in receipt of the Authority's recommendation, or the inability of a party to consider the recommendation because of illness etc. It was necessarily implicit that the date for objection could be varied by agreement and with the concurrence of the Authority, without the necessity to undertake the statutory processes in subsections (1) and (2) again.

Alternatively, if there was no implied power under s173A ERAct to vary the date, then there was statutory authority in s221 ERAct (joinder, waiver, and extension of time).

Challenge dismissed but the Authority determination (although correct) set aside because of effect of s183(2) ERAct, (determination set aside once court had made decision). Investigation into G's personal grievance to be recommenced.



This judgment deals with the new statutory procedure by which the Employment Relations Authority may, instead of issuing a determination, give parties a recommendation which may, in turn, become binding on them if it is not objected to. The Court is not aware of any other case that has yet come to it about this new way of resolving employment relationship problems.


There is also a preliminary issue raised by the defendant which has entered an appearance without conceding that the Court is empowered to decide the substantive point. The defendant says that the issue is one of the Employment Relations Authority's procedure which (under ss 179(5) and 188(4) of the Employment Relations Act 2000) the Court is not entitled to determine.


In these circumstances, it is both necessary and appropriate to deal with the jurisdictional argument first. Before doing so, however, I set out the relevant background events.

Relevant facts

Brian Grant was employed by the Vice-Chancellor of the University of Otago from 2001 until he was dismissed in August 2009. Mr Grant raised a personal grievance and, subsequently, filed a statement of problem with the Employment Relations Authority claiming that he had been dismissed unjustifiably.


The parties agreed that, pursuant to s 173A of the Act (which will be set out subsequently), the Authority could make a recommendation to them about Mr Grant's grievance. The recommendation would become the Authority's final determination of the grievance on the 10th day following the date of recommendation unless either party gave notice before then that he did not accept the recommendation.


The Authority issued its recommendation to the parties on 20 April 2011. This was to the effect that Mr Grant had been dismissed unjustifiably and set out the remedies the Authority recommended be awarded to him. The Authority specified the date by which its recommendation would become its determination, unless objected to by either party, as being 30 April 2011.


Before 30 April 2011, counsel for Mr Grant (not Mr Anderson, his current counsel) sought the Vice-Chancellor's agreement to the extension of the period during which the parties could consider and object to the Authority's recommendation. The defendant agreed to that request. This agreement between the parties was confirmed in writing by counsel and the period for consideration and rejection of the recommendation was then extended to 9 May 2011. It is common ground that although Mr Grant's counsel agreed on his behalf to the extension, Mr Grant himself did not do so.


Although not entirely clear, it appears that counsel for Mr Grant wrote to the Authority proposing the extension of time. The Authority Member's response was that if this course was agreed to by the Vice-Chancellor, the Authority would vary the period by extending it. The written agreement of the Vice-Chancellor was subsequently received. There was, therefore, a conditional written variation of the period by the Member with the condition having been satisfied.


Although counsel for both parties notified the Authority that they had agreed to this extension, the Authority Member did not discuss that with counsel or obtain the confirmation of the parties themselves (as opposed to their legal representatives) about the extension.


On 5 May 2011 the Vice-Chancellor gave written notice to the Authority that he did not accept its recommendation.


The Authority issued its determination 1 on this point on 27 July 2011 upholding the Vice-Chancellor's contention that the consideration and rejection period had been validly extended to 9 May 2011. It concluded that the Authority's recommendation was rejected on 5 May 2011 so that it did not become the Authority's determination. That has, in turn, been challenged by Mr Grant and, in the meantime I assume, investigation of his personal grievance by another Authority Member has not been progressed.


Mr Grant now asserts that there was no valid extension of the date to 9 May 2011 so that, in the absence of any objection by the Vice-Chancellor before 30 April 2011, the Authority's recommendation should have crystallised and have the force of a determination.

New legislative provisions

173 A Recommendation to parties

  • (1) The parties to an employment relationship problem may agree in writing—

    • (a) to confer the power to make a written recommendation in relation to the matters in issue on a member of the Authority; and

    • (b) on the date on which the member's recommendation will become final, unless the parties do not accept the recommendation.

  • (2) The member must, before making and signing a recommendation under that power,—

    • (a) explain to the parties the effect of subsections (4) and (5); and

    • (b) be satisfied that, knowing the effect of those subsections, the parties affirm their agreement.

  • (3) Where, following the affirmation referred to in subsection (2) of an agreement made under subsection (1), a recommendation is made and signed by the member empowered to do so, a party has until the date agreed under subsection (1)(b) to give written notice to the member who made the recommendation that the party does not accept the recommendation.

  • (4) If a party gives notice under subsection (3) that the party does not accept the recommendation,—

    • (a) the Authority must continue to investigate and determine the matter; and

    • ...

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