Fmv v Tzb

JurisdictionNew Zealand
CourtSupreme Court
JudgeO'Regan,William Young J,Glazebrook J,Williams J,Williams JJ,Winkelmann CJ
Judgment Date20 August 2021
Neutral Citation[2021] NZSC 102
Docket NumberSC 72/2019

[2021] NZSC 102

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

Court:

Winkelmann CJ, William Young, Glazebrook, O'Regan and Williams JJ

SC 72/2019

Between
FMV
Appellant
and
TZB
Respondent
Counsel:

R E Harrison QC for Appellant

T L Clarke for Respondent

Civil Procedure, Employment — appeal against a Court of Appeal decision which struck out the appellant's High Court proceedings on the basis that the Employment Relations Authority had exclusive had jurisdiction to hear the appellant's claims relating to her employment dispute — the appellant had brought parallel proceedings in the Employment Relations Authority and tort claims in the High Court in relation to prejudice she said she suffered at work — whether the High Court also had jurisdiction over the parallel claims — definition of “employment relationship problem” — Employment Relations Act 2002

The issue in this case was whether the HC had jurisdiction to hear FMV's claims, or whether they fall under the exclusive jurisdiction of the Authority.

The Court held that under s161(1) Employment Relations Act 2000 (“ERA”) (jurisdiction), the Authority had exclusive jurisdiction to make determinations about “employment relationship problems generally”. An employment relationship problem was defined to include any problem “relating to or arising out of an employment relationship”. The majority held that the tort exception in s161(1)(r) ERA applied only to s161(1)(r) ERA. It was not a carve-out from the Authority's exclusive jurisdiction generally. That meant that because FMV's HC claims could also be framed within one or other of the jurisdictional subheadings listed in s161(1) ERA, for example, as a personal grievance, the Authority had exclusive jurisdiction even though the claims could also be framed in tort. The majority held that the Authority's exclusive jurisdiction was not limited to problems that “directly and essentially” concerned the employment relationship, overruling the approach in JP Morgan. The majority also held that the Authority's jurisdiction was not necessarily limited to problems between parties to employment relationships themselves. The majority held that the correct approach to jurisdiction was a factual inquiry into whether the problem related to or arose from an employment relationship. If it did, then the problem must be dealt with in the Authority, regardless of how it was framed.

The appeal was dismissed.

  • A The High Court's suppression order is amended to suppress only the identities of the parties and to remain in force so long as the suppression order made by the Employment Relations Authority remains in force.

  • B The appeal is otherwise dismissed.

  • C Costs are reserved.

JUDGMENT OF THE COURT
REASONS

Para No.

Winkelmann CJ, O'Regan and Williams JJ

[1]

William Young J

[143]

Glazebrook J

[216]

Winkelmann CJ , O'Regan and Williams JJ

(Given by Williams J)

Table of Contents

Para No.

Introduction

[1]

Background

[6]

The claims

[9]

Procedural history

[13]

Section 161

[21]

The issues

[24]

High Court judgment

[27]

Court of Appeal judgment

[30]

Submissions on the Authority's jurisdiction

[32]

Appellant's submissions

[32]

Respondent's submissions

[40]

The Employment Relations Act 2000

[44]

Theme of the Act: relationships, not contracts

[45]

Themes of the institutions: empowerment, pragmatism and accessibility

[53]

Theme of s 161: problems, not causes of action

[60]

Legislative history

[68]

Preliminary conclusion

[75]

Issue one: Are FMV's claims “employment relationship problems”?

[77]

The case law

[77]

BDM Grange

[78]

JP Morgan

[83]

Our approach

[92]

Some examples

[96]

“Post-employment” problems

[99]

Directors and other split proceedings

[102]

Overlapping statutes

[105]

Answering issue one: Do FMV's claims arise from an “employment relationship problem”?

[110]

Issue two: Are FMV's claims nevertheless caught by the tort exception in s 161(1)(r)?

[112]

Employment institutions and the industrial torts

[117]

Legislative history

[121]

Overall purpose

[123]

Application to the facts

[134]

Abuse of process

[137]

Name suppression

[138]

Result

[140]

Introduction
1

Most adults in the New Zealand labour force are wage or salary-earners, 1 so work drives their economic fortunes, those of their dependants, and ultimately of their communities. And there is dignity in meaningful work, so it also contributes to the social wellbeing of people and communities. Private law principles of contract and tort are not seen as sufficiently responsive to that context. That is why successive legislatures since 1894 2 have enacted legislation to strike what each in their own time considered was a better balance than the common law between competing objectives: on the one hand, ensuring employment contracts are successful market transactions, and on the other hand, protecting employees with unequal bargaining power against the natural tendency of such transactions to commodify their labour. 3

2

A common feature of the legislative response from the beginning has been to channel disputes about work to specialist employment adjudicative bodies. This remains the case under the Employment Relations Act 2000 (the Act). It established two specialist employment bodies: the Employment Relations Authority (the Authority) and the Employment Court. 4 This appeal concerns the line between the jurisdiction of the Authority and that of the High Court.

3

The appellant, FMV, is a former employee of the respondent firm, TZB. FMV has brought parallel proceedings in the Authority and the High Court in relation to prejudice she says she suffered at work. There is no dispute that the Authority has jurisdiction over the claims that FMV has lodged there. The question is whether the High Court also has jurisdiction over the parallel claims FMV has filed in that Court.

4

TZB says the High Court does not have jurisdiction because s 161(1) of the Act gives the Authority exclusive jurisdiction over all of FMV's claims. That section provides that the Authority has exclusive jurisdiction over “employment relationship problems generally”. FMV's case is that despite the wording in s 161(1), she retains the right to bring a claim in tort in the ordinary courts.

5

If we conclude that the appellant is able to bring parallel proceedings, there is a subsequent issue as to whether it is nonetheless an abuse of process to do so in the circumstances of this case. Finally, we must address the appropriateness of decisions in the lower Courts to suppress the identities of the parties in this proceeding.

Background
6

FMV was employed by TZB for a period of one year, beginning in February 2009. She resigned in January 2010, effective one month later. Almost seven years later, in December 2016, FMV filed separate proceedings against TZB in the High Court and in the Employment Relations Authority.

7

In fact, FMV first raised her employment issues around August 2016 by making a complaint under the Human Rights Act 1993. Because the issue of FMV's capacity to proceed will be relevant in later discussion, it is necessary to note that the Human Rights Commission had arranged a mediation between the parties, but FMV's then counsel advised TZB's counsel that FMV's psychiatrist had concerns for her mental health. The relevant passage of a letter from FMV's clinician provided:

[FMV] is relatively stable though quite fragile in her mental health. She will thus be unable to manage any legal issues. She expresses an opinion that she feels stable enough to go in for mediation. We are happy for her to attempt the mediation process. However it would be important for both parties involved to keep in mind the fragile but stable mental health of [FMV] during the mediation process.

8

TZB therefore raised concerns about FMV's capacity to participate in mediation. The mediation did not proceed and FMV's Human Rights Act claim was not further pursued.

The claims
9

FMV commenced proceedings in the Authority in relation to a personal grievance in terms of s 103(1) of the Employment Relations Act. She claimed that she had been unjustifiably dismissed 5 and that she had been subjected to disadvantage by unjustifiable action on the part of TZB. 6

10

FMV's statement of problem 7 is lengthy, but the relevant aspects are as follows: 8

  • • During my employment, I was subjected to:

  • Bullying: [TZB] allowed a hostile and unsafe work environment to persist. Particularly, employees of [TZB]:

    • • made consistent and unjustified threats to terminate my employment;

    • • made frequent bullying comments to and about me, and made unjustified criticisms of me, including that I: was incompetent; could do nothing but smile; was unable to properly communicate; would soon be dismissed; was only employed because I was in a relationship with one of the partners; and was only employed because I was attractive.

  • Discrimination: [TZB] was aware of my disability but failed to accommodate it:

    • • as itemised above; and

    • • as I was required to work unreasonably long hours and [TZB] did not reduce my workload;

    • • as [TZB] did not take steps to reduce the stressors that were affecting me.

  • • I was also subjected to different treatment on the basis of my disability:

    • • as itemised above; and

    • • as, following my year-end review, and despite good performance, I was not permitted to progress to my second year and was...

To continue reading

Request your trial
4 cases
  • Fmv v Tzb
    • New Zealand
    • Supreme Court
    • 20 August 2021
    ...The appeal is otherwise dismissed. C Costs are reserved. ____________________________________________________________________ FMV v TZB [2021] NZSC 102 [20 August 2021] REASONS Winkelmann CJ, O’Regan and Williams JJ William Young J Glazebrook J Para No. [1] [143] [216] WINKELMANN CJ, O’REGA......
  • Gautam Jindal v Orange Capital Ltd
    • New Zealand
    • High Court
    • 16 December 2021
    ...19 20 21 Attorney General v District Court at Christchurch [2017] NZHC 1873; and Zaoui v AttorneyGeneral, above n 10). FMV v TZB [2021] NZSC 102. Allied Concrete Ltd v Meltzer [2015] NZSC 7 at [25]. I note that s 296(3) envisages claims by Liquidators outside of the jurisdiction of the Comp......
  • Fmv v Tzb
    • New Zealand
    • Supreme Court
    • 2 November 2021
    ...OF THE PARTIES REMAINS IN FORCE SO LONG AS THE SUPPRESSION ORDER MADE BY THE EMPLOYMENT RELATIONS AUTHORITY REMAINS IN FORCE. SEE [2021] NZSC 102 AT [138]. IN THE SUPREME COURT OF NEW ZEALAND I TE KŌTI MANA NUI SC 72/2019 [2021] NZSC 145 BETWEEN FMV Appellant AND TZB Respondent Court: Winke......
  • Fmv v Tzb
    • New Zealand
    • Supreme Court
    • 2 November 2021
    ...OF THE PARTIES REMAINS IN FORCE SO LONG AS THE SUPPRESSION ORDER MADE BY THE EMPLOYMENT RELATIONS AUTHORITY REMAINS IN FORCE. SEE [2021] NZSC 102 AT [138]. IN THE SUPREME COURT OF NEW ZEALAND I TE KŌTI MANA NUI SC 72/2019 [2021] NZSC 145 BETWEEN FMV Appellant AND TZB Respondent Court: Winke......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT