Mark Raymond Creedy v Commissioner of Police
 NZEmpC 104
IN THE EMPLOYMENT COURT AUCKLAND
In The Matter of a challenge to a determination of the Employment Relations Authority
Alex Hope, counsel for plaintiff
Sally McKechnie, counsel for defendant
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.
Held: Reinstatement was a remedy that was available to an employee who has been disadvantaged unjustifiably in employment. It was more commonly ordered where an employee had been dismissed from employment unjustifiably, but it was not limited to that sort of personal grievance. Any order for reinstatement must be practicable. What reinstatement meant in the case of an unjustified disadvantage grievance was not the same as its meaning as a remedy for unjustified dismissal.
In most cases of unjustified disadvantage, an employee might be disadvantaged unjustifiably but the employment relationship continued. In these circumstances, reinstatement was a remedy to redress the disadvantage and to put the ongoing employment back on the same footing as it was before the disadvantage occurred. An example of this would be where an employee had been demoted. The employee would be reinstated to his or her pre-demotion position.
In other circumstances, an employee might complain of an unjustified disadvantage but subsequently resign in circumstances where there could be no claim to an unjustified dismissal, whether constructive or not. That was C's position. In such cases, any order for reinstatement could not include the re-placement of the employee in the previous employment relationship with the employer that was ended by resignation or other circumstance except unjustified dismissal.
The same conclusion was reached when other matters were considered. Reinstatement could only be to the pre-disadvantage terms and conditions of the employment if it was ongoing, which it was not in this case. The remedy of reinstatement was impractical in the sense that it would require C's re-engagement by the Commissioner as constable several years after he terminated it an in circumstances where he could not claim unjustified constructive dismissal. It was also impracticable as a remedy for unjustified disadvantage in the sense that, although suspended for the period until he disengaged, C continued to receive his salary and other benefits of his employment. There was no demotion or other loss which might have been amenable to a remedy of reinstatement for unjustified disadvantage. If the Commissioner was unable to justify the disadvantage to C of his suspension and other treatment, that might leave open the remedy of monetary compensation contemplated by s123 (1)(c)(i) ERA.
Section 188(4) ERA precluded the Court from directing or advising the Authority in relation to the exercise of its investigative role, powers, and jurisdiction. To determine the nature and scope of the evidence that the Authority was entitled to consider and, in effect, to direct it to investigate matters that it had determined it would not, would amount to advising or directing the Authority in relation to the exercise of its investigative role, powers and jurisdiction.
The scheme of the ERA was that cases in the Authority should be permitted to run their course unaffected by procedural challenges to the Court. Once a case was determined by the Authority on the merits it permitted to be investigated, a party who was dissatisfied with the result might challenge that in the Court by hearing de novo. In addition to those rights of challenge, it was also open to a party in C's position to seek to persuade the Authority to remove the case to the Court for hearing at first instance under s178 ERA (removal to court).
C's challenge as to the nature and scope of evidence dismissed.
As a matter of law, C could not claim remedy of reinstatement and the Court's judgment stood in place of the Authority's determination.
JUDGMENT OF Chief Judge G L Colgan
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.
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 EmploymentRelations 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.
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.
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.
In its determination, after receiving written submissions, the Employment Relations...
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