Mark Raymond Creedy v Commissioner of Police

• Jurisdiction: New Zealand
• Judge: Chief Judge G L Colgan
• Judgment Date: 11 August 2011
• Court: Employment Court
• Docket Number: ARC 130/10
• Date: 11 August 2011

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

Between

Mark Raymond Creedy

Plaintiff

and

Commissioner of Police

Defendant

[2011] NZEmpC 104

ARC 130/10

IN THE EMPLOYMENT COURT AUCKLAND

Challenge to determinations of Employment Relations Authority (“the Authority”) with respect to claim of unjustified disadvantage in employment and the nature and scope of its investigation in determining the claim — plaintiff had resigned and had failed in constructive dismissal claim as he was out of time — had raised an earlier personal grievance alleging unjustified disadvantage in employment — sought reinstatement in service as remedy — whether plaintiff entitled to remedy of reinstatement with regard to claim of personal grievance of unjustified disadvantage in employment — whether Court was empowered to advise or direct the Authority in relation to the exercise of its investigative role, powers and jurisdiction.

Counsel:

Alex Hope, counsel for plaintiff

Sally McKechnie, counsel for defendant

JUDGMENT OF Chief Judge G L Colgan

1 This challenge to a determination 1 of the Employment Relations Authority about the nature and scope of its investigation and determination, poses interesting and difficult issues. These arise where a former employee has what is known colloquially as a disadvantage grievance connected closely to a subsequent resignation said to have been an unjustified constructive dismissal but in respect of which the former employee is precluded from bringing an unjustified dismissal grievance.

2 Mark Creedy's proceedings relating to the end of his career as a police officer have already been the subject of decisions and judgments in the Employment

Relations Authority, 2 this Court, 3 the Court of Appeal, 4 and the Supreme Court. 5 The outcome of that litigation was that Mr Creedy was found to have failed to raise his personal grievance of unjustified constructive dismissal with his employer within the statutory period and was unable to get leave to raise that grievance out of time on the statutory grounds for doing so. It is, however, conceded by the Commissioner that Mr Creedy still has an earlier personal grievance claim relating to his treatment by his employer with regard to the events that led to his resignation. Mr Creedy claims, as remedies for those alleged unjustified disadvantages suffered by him in his employment, reinstatement to his former position as a police officer, lost remuneration, and compensation under s 123(1)(c)(i) of the Employment Relations Act 2000 (the Act), known colloquially as distress compensation

3 The Commissioner says that Mr Creedy's claims to these remedies amount to a collateral attack on the judgments of the Courts in the previous cases and an attempt to obtain, through the back door, the relief from which he was previously disqualified. The Commissioner's concerns also relate to the nature and scope of evidence that Mr Creedy may be permitted to put before the Employment Relations Authority in its investigation of his disadvantage grievance.

4 This led the Commissioner to ask the Authority to limit the nature and scope of its investigation of Mr Creedy's disadvantage grievance and, after written submissions from the parties, the Authority did so. It is that determination that is now challenged by Mr Creedy and so raises again for consideration the nature and extent of the surviving personal grievance and of the remedies that may be available to him if he is successful.

The Authority's determination

5 In its determination, after receiving written submissions, the Employment Relations Authority concluded at paras 12–14:

[12] Mr Creedy is no longer an employee. For a reinstatement claim to be successful he would need to show that he had been unjustifiably dismissed, which he is unable to do.

[13] There is no connection between the disadvantage grievance and reinstating Mr Creedy to a position from which he disengaged, a matter which he cannot contest.

[14] Mr Creedy was suspended on full pay and cannot have lost any wages or benefits as a result of his alleged disadvantage. Such a claim could only arise from an unjustified dismissal grievance which Mr Creedy cannot pursue. Any remedies must flow from the grievance.

6 As to the scope of permissible evidence to be led in respect of Mr Creedy's personal grievance, the Authority concluded at paras 9 and 11:

[9] I agree with the respondent that the Statement of Problem attempts to present the post 4 April 2001 events as part of a chain of events integral to the events which Mr Creedy is able to have heard as personal grievance. The post 4 April 2001 events relate to the alleged constructive dismissal. Although the applicant's submissions state that Mr Creedy does not seek remedies for the dismissal it is evident that is exactly what he does wish to do.

…

[11] … what Mr Creedy seeks to have introduced is evidence post the grievance. While evidence about the effect of a grievance on a person is admissible in terms of assessing a claim for humiliation and distress and loss of wages, in this case the evidence would necessarily need to deal with the alleged constructive dismissal and that is where the applicant faces the problem that that matter cannot be heard. I will hear evidence regarding the effect of the unjustified disadvantage upon the applicant but that cannot be regarding the alleged dismissal.

Is the plaintiff's claim to “reinstatement” justiciable?

7 The following is uncontroversial as I understand the position. Mr Creedy raised a personal grievance alleging unjustified disadvantage in employment. His employment continued and although he was suspended from performing the duties of it, he continued to be paid. Mr Creedy subsequently resigned (or, using the terminology of the then applicable Police Act, disengaged) on medical grounds so that the employment relationship ceased. Although he claimed that his disengagement or...