H v A Ltd NZEmpC AUCKLAND

• Jurisdiction: New Zealand
• Judge: Christina Inglis,G L Colgan,M E Perkins
• Judgment Date: 13 June 2014
• Court: Employment Court
• Docket Number: ARC 3/14
• Date: 13 June 2014

In the Matter of a challenge to a determination of the Employment Relations Authority

BETWEEN

H

Plaintiff

and

A Limited

Defendant

[2014] NZEmpC 92

Court:

Chief Judge G L Colgan

Judge Christina Inglis

Judge M E Perkins

ARC 3/14

IN THE EMPLOYMENT COURT AUCKLAND

Challenge to a determination of the Employment Relations Authority declining to prohibit publication of the plaintiff's name and identifying details — plaintiff was challenging his dismissal from his employment with the defendant for alleged sexual harassment — sought name suppression on the basis of the harm it would have on his son and who had dyspraxia and exhibited self harming behaviour — respondent argued that the high threshold for non-publication had not been met — whether the non-publication determination related to a matter of procedure and a challenge to it was barred by s179(5) ERA (determination about the Authority's procedure) — what was the scope of the right of challenge under s179 ERA — whether the applicant for a non-publication order had to show exceptional circumstances before an order would be granted — whether the Court should take into account international human rights instruments (specifically United Nations Convention on the Rights of the Child) when the interests of children might be affected by publication of accounts of proceedings.

Appearances:

RE Harrison QC and C Abaffy, counsel for plaintiff

D France, counsel for defendant

• A The plaintiff is not prohibited by s 179(5) of the Employment Relations Act 2000 from bringing this challenge (unanimous judgment).

• B Until further order of the Court there will be an order prohibiting publication of the parties' names and other identifying particulars (judgment of the majority).

JUDGMENTS OF THE FULL COURT

REASONS FOR JUDGMENT OF JUDGE Christina Inglis

1 This case relates to the narrow, but important issue, of the sort of matters that give rise to a right to challenge a determination of the Employment Relations Authority during the course of its investigation. The particular issue relates to a determination of the Authority declining to prohibit publication of the plaintiff's name and identifying details, 1 but the principles that apply to determining the scope of the right of challenge, and when it may be exercised, have more general application. It is for this reason, and against the backdrop of differing approaches that have been adopted in this Court, that a full bench was convened.

2 It is unnecessary to dwell on the background facts in anything other than a cursory manner. The plaintiff was dismissed from his employment with the defendant for alleged sexual harassment. The plaintiff denied the allegation and pursued a personal grievance in the Authority. Before the Authority's investigation meeting had taken place he made an urgent application for non-publication orders pending the Authority issuing a final determination on the substantive matters under investigation. These orders were sought on the basis that if his name was published it would likely have an adverse effect on his family, although the details of the plaintiff's concerns and the nature and extent of the material filed in support of the application were not referred to by the Authority in its determination. What were sought, therefore, were interim rather than final orders.

3 On 13 December 2013 the Authority made an interim non-publication order that would lapse at 3:00 pm on 20 January 2014. The Authority member concluded that this order “was appropriate to allow the applicant an opportunity to inform his family and to exercise his rights of appeal if a further non-publication order was sought”. 2

4 The plaintiff took up the option identified in the Authority's determination and filed a de novo challenge on 13 January 2014 seeking a non-publication order prohibiting publication until 28 days following the Authority's substantive determination. Issues were then raised as to whether the Court could entertain the challenge having regard to the scope of s 179(5) of the Employment Relations Act 2000 (the Act).

5 Section 179 sets out the circumstances in which a challenge may be pursued. It provides that:

179 Challenges to determinations of Authority

• (1) A party to a matter before the Authority who is dissatisfied with the determination of the Authority or any part of that determination may elect to have the matter heard by the Court.

• …

• (5) Subsection (1) does not apply-

  • (a) to a determination, or part of a determination, about the procedure that the Authority has followed, is following, or is intending to follow; and

  • (b) without limiting paragraph (a), to a determination, or part of a determination, about whether the Authority may follow or adopt a particular procedure.

6 It follows that the Authority must have issued a “determination” and that the challenge cannot relate to the procedure that the Authority has, is, or intends to follow.

Discussion — scope of s 179(5)

7 It is common ground that the Authority issued a determination. The parties are at odds over whether the determination relates to a matter of procedure for the purposes of s 179(5). Counsel for the plaintiff, Mr Harrison QC, urged us to adopt a narrow approach to the definition of “procedure”. Mr France, counsel for the defendant, argued the converse. The proper approach to s 179(5) requires an analysis of its text and purpose.

8 Relevantly, while s 179(1) remains in its original form (conferring a broad right of challenge), subs (5) was part of a suite of amendments enacted in 2004. 3 The history behind the reforms appears, at least in part, to be a legislative response to the judgment of the Court in David v Employment Relations Authority. 4 There, the Court held that the application of an Authority practice direction preventing the cross-examination of witnesses could be the subject of review.

9 As the Court of Appeal pointed out in Employment Relations Authority v Rawlings, the Act enables this Court to supervise the Authority either by challenge (under s 179) or by way of review (under s 194). 5 It went on to observe that: 6

… The Act makes it clear, albeit in different ways, that the general policy of the Act is against such supervision being exercised in relation to procedural rulings.

10 The Court of Appeal emphasised that although s 179(5) limits the right of challenge in respect of an ongoing Authority investigation, once that investigation has been completed a party has a right of challenge in the Court by way of hearing de novo. In particular the Court stated that: 7

We are satisfied that ss 179(5) and 184(1A) are intended to prevent challenge or review processes disrupting unfinished Authority investigations. But once the investigation is over and a determination has been made, there is no reason for limiting the challenge and review jurisdictions of the Employment Court. If the procedure adopted by the Authority has had a decisive influence on result (eg by refusing an adjournment and proceeding in the absence of a witness), the affected party, in the course of questioning that result, will be entitled to put in issue that procedure.

11 The definition of “procedure” under s 179(5) was first considered in Keys v Flight Centre (NZ) Ltd. 8 There the Court found that the question of whether the Authority could issue Anton Piller orders was not a matter of procedure. In obiter observations the full Court said that: 9

… the notion of ‘procedure’ is limited to the manner in which the Authority conducts its business and does not include outcomes, substantive or interim, and certainly not a determination of its jurisdiction.

12 The term was subsequently considered in Oldco PTI (New Zealand) Ltd v Houston. 10 In refusing a challenge to an Authority determination which declined to suppress information acquired in the course of an investigation, Judge Couch drew a distinction between substantive determinations, which affect the rights and obligations of the parties and which may be interim or final; procedural determinations, which direct the manner in which the employment relationship

problem between the parties is resolved or determines the environment in which the investigation process takes place; and jurisdictional determinations, which determine whether the Authority has the power to make a substantive or procedural determination. 11 He concluded

52 If a determination is substantive or jurisdictional, it will be outside the scope of s 179(5) and open to challenge under s 179(1). If it is neither substantive nor jurisdictional, it is likely to be “about the procedure” of the Authority. Section 179(5) will then apply and no right of challenge will be available.

13 Judge Couch considered that a key indication of whether a determination is substantive will be whether it affects the remedies sought and, if so, the determination will almost certainly be a substantive one, 12 holding: 13

… Whether or not suppression or exclusion orders were made did not affect the rights and obligations of the parties. Nor did it form any part of the resolution of the employment relationship problem between the parties. It only affected the environment in which the Authority decided to conduct its investigation. As such the determination was procedural and not substantive.

14 We agree with Judge Couch that, in assessing whether a decision of the Authority is procedural or not, it is more important to have regard to the effect of the decision rather than the nature of the power being exercised.

15 In Rawlings, the Court of Appeal expressed itself in broad agreement that determinations which are able to be challenged are not confined to decisions on the substantive merits of a particular case, having regard to the way in which “determination” is used in s 179(5). 14

16 This Court has since considered the application of s 179(5) in a number...