Heritage Expeditions Ltd v Fraser Chch
| Jurisdiction | New Zealand |
| Judge | A A COUCH |
| Judgment Date | 06 December 2011 |
| Court | Employment Court |
| Docket Number | CIV-2011-441-618 |
| Date | 06 December 2011 |
In the Matter of the Family Proceedings Act 1980
[2010] NZEMPC 35
CIV-2011-441-618
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
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.
A J Davies with N J Booth for Appellant
C M Hickman and for Respondent
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:
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a) Having given its substantive determination, did the Employment Relations Authority have jurisdiction to reopen its investigation on its own motion?
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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. …
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 Schedule 2 provides:
4 Reopening of investigation
(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 essential issue is whether this clause enables the Authority to reopen an investigation of its own volition or only on the application of a party.
For the plaintiff, Ms Ryder made a series of submissions supporting the proposition that the power conferred by cl 4(1) could only be exercised on the application of a party.
Ms Ryder's first submission was that the power conferred by cl 4(1) was an exception to the principle of functus officio, the effect of which is that, once a judicial decision has been given, the decision-maker cannot alter it. That being so, she submitted that the power could only be exercised in accordance with what she described as “the statutory code” comprising the Employment Relations Act 2000 and the Employment Relations Authority Regulations 2000.
Ms Ryder's second submission relied on reg 10 which provides:
10 Application to Authority to reopen investigation
Every application under clause 4 of Schedule 2 of the Act to reopen an investigation must-
(a) be lodged with an officer of the Authority; and
(b) be in form 4; and
(c) be accompanied by the prescribed fee.
Ms Ryder submitted that the effect of this regulation was that the scope for exercise of the power...
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