McLeod v National Hearing Care (Nz) Ltd

JurisdictionNew Zealand
CourtEmployment Court
JudgeA D FORD,Judge
Judgment Date27 July 2012
Date27 July 2012
Docket NumberWRC 1/12

[2012] NZEmpC 120


Judge Ford

WRC 1/12

In The Matter Of an application for leave to file a challenge out of time

Susan Mcleod
National Hearing Care (Nz) Ltd

David McLeod, representative for the applicant

Richard Harrison, counsel for the respondent

Application for extension of time to lodge challenge to determination of the Employment Relations Authority (“Authority”) upholding employer's decision to dismiss the employee — 28—day limit for raising challenge expired — an application for extension of time was filed seven days after the deadline — delay primarily due to Christmas holidays and employee's other work commitments during the holiday season — whether or not r74B Employment Court Regulations 2000 (what happens to timing in Christmas period) could be applied to the 28—day time period prescribed by s179(2) Employment Relations Act 2000 (challenge to determination of Authority to be made within 28 days of the date of determination) — whether the Court should exercise its discretion to grant extension of time.

The issues were: whether or not r74B ECR (what happens to timing in Christmas period) could be applied to the 28-day time period prescribed by s179(2) ERA (challenge to determination of Authority to be made within 28 days of the date of determination); and whether the Court should exercise its discretion to grant an extension of time.

Held: In its earlier decisions the Court had not considered whether the potential non-application of r74B gave rise to an absurdity. The fundamental question was whether r74B could be read consistently with the primary legislation. There was a presumption of validity and delegated legislation had to be presumed to be valid unless and until it was declared invalid. Further a regulation was to be interpreted so as to be reconciled with its empowering statute, but if it could not be reconciled, then it gave way to the plain terms of the statute.

Regulation 74B ECR and s179 ERA could be reconciled or read consistently in that the regulation was expressed to only apply to the calculation of time and not to the number of days or the amount of time given. In that way, the 28-day time limit was not extended but some days simply did not count in the calculation of the 28 days. This approach would have the advantage of giving effect to r74B rather than having it declared ultra vires with the attendant resulting potential confusion to would-be litigants who might not have access to relevant judgments on the issue. However in the absence of submissions from counsel on this issue the Court would not depart from its previous decisions and therefore M required leave to proceed.

The delay was for a period of seven days, which was relatively minimal as it occurred during the holiday season. M did not focus on whether or not to challenge the determination of the Authority until she was contacted by her advocate on 19 January 2012 and told about the settlement he had reached with her employer's counsel. M immediately rejected the settlement. Further, her employment at the camping ground made it very difficult for her to focus on the issues covered and determined by the Authority.

The merits of the proposed challenge were just one of the factors the Court had historically taken into consideration in reaching its conclusion on the fundamental issue, which was the justice of the case. Its significance, however, should not be overvalued particularly as the Court no longer dealt with these issues on an appeal basis (as it was under the previous legislation) but instead with challenges which involved a complete rehearing. The more relevant considerations under the existing regime, were the reasons for the delay, the length of the delay and any resulting prejudice to the respondent. Although the Authority had made strong findings on a number of issues, if granted leave, M sought a de novo hearing. The case involved serious issues and was not devoid of merit.

The justice of the case required that an extension of time be granted so as to allow M to proceed with a challenge against the Authority's determination.

Application granted.

The application

The applicant has filed an application seeking an extension of time within which to lodge a challenge to a determination 1 of the Employment Relations Authority (the Authority) which was issued on 21 December 2011. The statutory 28—day limit for raising such a challenge expired on 18 January 2012. The application for extension of time was filed by email on 25 January, seven days after the last date for filing a challenge. On 20 February the respondent filed a notice of opposition opposing the application for leave to raise a challenge out of time.


In the course of a telephone directions conference held on 16 April 2012, it was agreed between the parties that the application could be dealt with on the papers by way of an exchange of written submissions. Mr Harrison, counsel for the

respondent, sought and was granted leave to file affidavit evidence in support of the respondent's opposition. At the same time, a timetabling order was made for the filing of submissions. It was agreed that Mr Harrison would present his written submissions first and he was ordered to do so by 7 May 2012. Unfortunately, through an oversight, Mr Harrison failed to file his submissions on time and at his request the Court subsequently had to issue a further minute containing a revised timetabling order for the filing of submissions.
The background

In brief, the events leading up to this litigation can be summarised reasonably neutrally in these terms. Ms Susan McLeod held a certificate in hearing therapy and had been employed by Audiology Hawke's Bay as an audiometrist since April 2007. In her draft statement of claim it is alleged that her audiology career spanned 20 years. Her role was to assess a client's hearing and hearing needs and then under the supervision of Ms Lisa Thompson, a fully qualified audiologist, she would participate in the selection, setting up and fitting of appropriate hearing aids. In early 2009, Audiology Hawke's Bay was purchased by the respondent but Ms McLeod continued in her previous role.


In May 2011, the Crown issued a notice under the New Zealand Public Health and Disability Act 2000 advising the terms and conditions under which payments would be made for hearing aid services to eligible persons. One of the requirements of the notice was that a fully qualified audiologist needed to assess an eligible person's hearing and hearing needs. The respondent's interpretation of that requirement was that Ms McLeod could no longer carry out her duties unless she was constantly supervised and that effectively required two people to do the work of one which made her continued employment untenable. Ms McLeod contended that the status quo, with her receiving supervision from Ms Thompson, could have continued.


The Authority conducted its investigation on 2 September 2011 and found in favour of the respondent concluding that the level of supervision Ms McLeod was receiving from Ms Thompson did not meet the requirements of the Crown notice and, therefore, the respondent's decision to disestablish her role as from 1 July 2011 was substantively justified. The Authority also held that the respondent had complied with the relevant procedural requirements.

The case for the applicant

In her affidavit filed in support of her application for leave dated 25 January 2012, Ms McLeod explained in the following paragraphs the reasons for the delay in challenging the Authority's determination:

  • 7. The Authority's determination of my case was issued on 21 st December 2011, and I was told verbally about the outcome the next day.

  • 8. This was a very busy time for me, being just before Christmas, and I found it difficult to comprehend during this time given the other pressures I had during that time.

  • 9. I have been forced to take up employment at a Camping Ground and this along with some Audiology work means that I work six days per week to earn enough money to make ends meet.

  • 10. This period is also a very busy time for the Camping Ground because of the summer break and I found it very difficult to focus on the issues covered and determined by the Authority.

  • 11. Once I did focus on the determination and the impact for me personally the 28 days provided for me to challenge this decision had passed.

  • 12. I am of very limited finances also because of the impact this has had on me and the decision to move to a challenge in the Court has been very difficult and stressful.

The case for the respondent

In his extensive submissions in response, Mr Harrison relied on one authority only, namely the decision in this Court in Stevenson v Hato Paora College Trust Board. 2 Counsel noted that in that case Judge Shaw held, “that a delay of 12 days (which involved the Christmas period and counsel miscalculation) was neither so minimal nor so substantial as to be the main deciding factor in the application.” Mr Harrison explained that the respondent's opposition to the present application centred primarily “… around the reason for the omission, prejudice/costs and the merits of the challenge.” In support of his submissions, Mr Harrison filed a

28—paragraph affidavit from the respondent's Managing Director, Mr James Whittaker, which included a number of annexures.

In relation to the reasons for the delay, Mr Harrison submitted that the allegation that Ms McLeod's work commitments at the camping ground over the summer break prevented her from focusing on the issues covered and determined by the Authority until after the 28-day limitation period had expired was “not credible” nor was it an acceptable reason for the delay. Counsel referred to an exchange of emails between the parties...

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