Heritage Expeditions Ltd v Fraser Chch


[2010] NZEMPC 35




In the Matter of the Family Proceedings Act 1980


A J Davies with N J Booth for Appellant

C M Hickman and for Respondent

Challenge to the jurisdiction of the Employment Relations Authority (“he Authority” to reopen an investigation of its own volition when it became aware, after making a finding that the employer had unjustifiably dismissed an employee, that the employee was not employed by the respondent cited in the intituling — whether Clause 4 of Schedule 2 Employment Relations Act 2000 gave jurisdiction to the Authority to reopen an investigation, in particular, on its own volition.

Held: The Employment Relations Act 2000 explicitly gave the Authority jurisdiction to reopen an investigation Clause 4 of Schedule 2 provided:

  • (1) The Authority may order an investigation to be reopened upon such terms as it thinks reasonable, and in the meantime to stay the effect of any order previously made.

  • (2) The reopened investigation need not be carried out by the same member of the Authority.

The text of cl 4(1) was straightforward. The plain meaning of the words used was simply that the Authority has power to reopen an investigation. That power was not qualified in any way by the clause itself. It followed that the issue then became whether this was inconsistent with the purpose of the legislation or if there is any proper reason to depart from the plain meaning of the words used.

The immediate purpose of having a power to reopen an investigation was to enable the Authority to prevent injustice. To that end, the principle consideration in the exercise of the power must be the justice of the case. This fundamental purpose could be achieved whether the proposal to reopen an investigation came from a party or from the Authority itself.

As with all statutory discretions, however, the power conferred by cl 4(1) must be exercised judicially and in accordance with the statutory role of the Authority. That role was defined in s157 Employment Relations Act 2000 which provided that the Authority must, in carrying out its role, comply with the principles of natural justice ensuring parties potentially affected by the exercise of the Authority's powers were fully and fairly informed of what is to be considered and had a proper opportunity to be heard.

There was no reason to depart from the plain meaning of the words used in cl 4(1). It followed that the Authority may exercise the power to reopen an investigation of its own volition.


This judgment concerns the jurisdiction of the Employment Relations Authority to reopen an investigation. In particular, the question to be answered is whether the Authority has jurisdiction to reopen an investigation of its own volition.


The background to the matter is detailed in my earlier judgment dealing with an application for an extension of time in which to challenge the Authority's determination 1. In essence, the Authority originally determined 2 that Mr Fraser had been employed by Heritage Travel Group Limited and had been unjustifiably dismissed by that company. The Authority ordered Heritage Travel Group Limited to pay remedies to Mr Fraser totalling nearly $14,000.


Six months later, on 28 April 2009, solicitors representing Mr Fraser wrote to the Authority suggesting that Heritage Expeditions Limited had been Mr Fraser's employer at the time of his dismissal. On 20 May 2009, the Authority issued a minute to Mr Fraser and to Heritage Travel Group Limited in which it said:

  • [1] On 29 October 2008, the Authority issued its determination on this matter.

  • [2] It has recently been brought to the Authority's attention that, following the applicant's attempts to enforce the determination, the respondent contends Mr Fraser was not employed by the respondent cited in the intituling.

  • [3] Having considered the correspondence from the applicant's counsel, the Authority is reopening this matter at its own election in order to consider this issue alone.


Having reopened the investigation in this manner, the Authority conducted a further investigation meeting on 4 June 2009. Mr Fraser appeared in person. There was no appearance for Heritage Travel Group Limited. On 3 July 2009, the Authority issued a supplementary determination 3 in which it concluded:

  • [12] I find the correct employer of Mr Fraser during the time of his employment was Heritage Expeditions Limited. His employment was never with Heritage Travel Group Limited.

  • [13] As a result of this finding I order Heritage Expeditions Limited to pay the applicant the sum set out in the original determination, namely

    • •Lost remuneration in the sum of $6,346.18 gross

    • •Compensation in the sum of $7,500 net


In the final paragraph of the determination, the Authority also made an order for costs in favour of Mr Fraser of $2,097.50.


It is this determination citing the plaintiff as a party and making orders against it which is the subject of the challenge. In my earlier judgment, I granted an extension of time within which the plaintiff might file that challenge. The statement of claim was duly filed in time and a statement of defence to it was also filed. I then held a telephone conference with the parties on 9 November 2009.


The original statement of claim was filed by Rodney Russ, a director of the plaintiff. It was not in an appropriate form. Before the telephone conference on 9 November 2009, however, the plaintiff had engaged Ms Ryder to represent it and it was she who took part in the conference call. In the course of that call, Ms Ryder outlined the arguments the plaintiff wished to advance in support of its challenge. They included the proposition that the Authority had no jurisdiction to reopen the investigation “at its own motion” and that its subsequent determination was therefore a nullity.


After discussion with Ms Ryder and Mr Fraser, I directed that the jurisdictional issues be heard and decided as preliminary issues. In my minute dated 9 November 2009, I defined those issues as being:

  • a) Having given its substantive determination, did the Employment Relations Authority have jurisdiction to reopen its investigation on its own motion?

  • b) If the answer to a) is “no”, do the substantive issues determined by the Authority in its supplementary determination remain before the Court for decision?


Ms Ryder and Mr Fraser agreed that these issues should be the subject of written submissions and dealt with on the papers. I set a timetable for the provision of submissions and concluded my minute by saying:

[9] If the substantive issue of the identity of Mr Fraser's former employer remains before the Court following decision of the preliminary jurisdictional issues, there will be a further telephone conference to decide how the matter is to proceed. Options at that stage would include further mediation or a judicial settlement conference.

Parties' submissions

Ms Ryder and Mr Fraser have provided written submissions as agreed but both have dealt with the entire range of issues raised by the pleadings rather than just the jurisdictional issues they were required to address. At this stage of the matter, I have put their submissions relating to other matters to one side and had regard only to their submissions on the jurisdictional issues.


The Employment Relations Act 2000 explicitly gives the Authority jurisdiction to reopen an investigation. Clause 4 of...

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