Caroline Sawyer v the Vice Chancellor, Victoria University of Wellington NZEmpC Wellington

JurisdictionNew Zealand
CourtEmployment Court
JudgeK G Smith
Judgment Date12 September 2017
Date12 September 2017
Docket NumberEMPC 144/2017

[2017] NZEmpC 111

IN THE EMPLOYMENT COURT WELLINGTON

EMPC 144/2017

In the Matter of an application for leave to file challenge out of time

And in the Matter of an application for stay of proceedings

Between
Caroline Sawyer
Applicant
and
The Vice Chancellor, Victoria University of Wellington
Respondent
Appearances:

K Smith, counsel for applicant

G Davenport, counsel for respondent

Employment — Employment Court — interlocutory application to stay proceedings — applicable principles — procedure — whether record of settlement breached — jurisdiction — application dismissed

Held: The EC's power to grant a stay was conferred by r64 Employment Court Regulations 2000. Before the Court could consider a stay under r64 there must be a challenge brought under s179 of the Act. There was nothing before the Court that could be the foundation for a stay so the EC did not have jurisdiction to entertain S's application for a stay.

S was seeking to have the Court interrupt the investigation in a way not permitted by s179(5) of the Act. What was being sought would, if granted, interfere with the investigative process by stopping it.

Application dismissed.

INTERLOCUTORY JUDGMENT OF JUDGE K G Smith APPLICATION TO STAY PROCEEDINGS

1

On 25 July 2017 Caroline Sawyer applied for a stay of proceedings relating to a determination of the Employment Relations Authority. 1

2

Before considering this application, it is necessary to describe the determination to which it relates and other procedural steps taken by Dr Sawyer.

3

On 3 March 2017 the Authority determined an application for a compliance order and penalties made by the Vice-Chancellor. The determination records that on 24 July 2014 the parties had attended mediation the result of which was a record of

settlement entered into by them pursuant to s 149 of the Employment Relations Act 2000 (the Act).
4

On 21 December 2016, in a previous determination, the Authority held that the record of settlement was binding upon the parties. 2 In separate proceedings Dr Sawyer has challenged the validity of that record of settlement. 3

5

What was being investigated by the Authority that led to its determination of 3 March 2017 was a claim by the Vice-Chancellor that on or about 19 and 20 January 2017 and on or about 17 February 2017 Dr Sawyer had breached the record of settlement.

6

The determination records that Dr Sawyer did not oppose the application for a compliance order and, in a way not fully explained in the determination, recorded that the parties agreed the Authority could make a compliance order by consent. An order was made that Dr Sawyer had breached the record of settlement. She was ordered to comply fully with its terms.

7

That determination left for future investigation a claim for penalties as provided for by s 149(4) and s 135 of the Act.

8

Dr Sawyer wants to challenge that 3 March 2017 determination but she did not do so within the time permitted in s 179 of the Act. Consequently, on 30 June 2017, she applied for leave to extend the time within which she could challenge the determination. 4 That application for leave disputes, amongst other things, the validity of the determination and says that consent was not, in fact, given for the orders that were made. That application seeking leave is opposed and has not yet been decided.

9

Finally, by way of background, the Vice Chancellor is continuing to seek to have penalty matters investigated by the Authority and directions have been issued to

allow that investigation to be concluded. The Authority's directions have timetabled an exchange of evidence and submissions. Dr Sawyer's submissions must be filed with the Authority by Thursday 14 September 2017. Thereafter a determination on the papers is anticipated.
10

This application seeking a stay of proceedings is directed at the Authority's investigation of those yet to be decided penalty matters arising from the determination of 3 March 2017. 5 A stay of that proceeding is said to be appropriate because, otherwise, there will be an impediment to Dr Sawyer being able to collect evidence, and prepare for, another proceeding before the Court arising from the termination of her employment. 6

11

The fact that Dr Sawyer is seeking an order from the Court to stay the Authority investigation was confirmed by her affirmation dated 25 July 2017, in which she stated her opposition to the Vice-Chancellor seeking enforcement of the order in the consent determination.

12

Not surprisingly this application is opposed. The Vice-Chancellor does so on the basis that the Court has no jurisdiction and, in any event, there is no proper reason to order a stay.

13

In my minute of 22 August 2017 directions were made timetabling an exchange of submissions about Dr Sawyer's application for a stay. That minute recorded an explanation from Dr Sawyer's counsel, Mr Smith, about what is sought. Mr Smith explained that a stay of the “whole matter” was anticipated meaning:

  • (a) the consent determination of the Authority (that is the determination of 3 March 2017); and

  • (b) any subsequent enforcement or penalty arising from that determination.

14

Two issues were raised for consideration by the parties in that minute. Both issues were about the Court's jurisdiction to entertain this application. The 3 March 2017 determination is not yet before the Court, because the application for an extension of time to challenge has not been decided. In that situation the first issue was the Court's jurisdiction to grant a stay before the application for an extension of time has been decided. The second issue was about s 179(5) of the Act and the Court having no jurisdiction to entertain a challenge to a determination, or part of a determination, about the procedure the Authority has followed, is following or is intending to follow.

15

Submissions for Dr Sawyer were filed on 28 August 2017 and 8 September 2017. By in large they address whether or not her application for an extension of time is meritorious. An explanation was provided as to why the determination is said to erroneously record that it was made by consent. Those submissions draw...

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