McLeod v National Hearing Care (Nz) Ltd
| Jurisdiction | New Zealand |
| Judge | A D FORD |
| Judgment Date | 27 July 2012 |
| Court | Employment Court |
| Docket Number | WRC 1/12 |
| Date | 27 July 2012 |
In The Matter Of an application for leave to file a challenge out of time
[2012] NZEmpC 120
Judge Ford
WRC 1/12
IN THE EMPLOYMENT COURT WELLINGTON
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.
David McLeod, representative for the applicant
Richard Harrison, counsel for the respondent
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 submissionsIn 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.
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.
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 annexuresIn 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 over the issue of costs which he submitted indicated that Ms McLeod was aware of the 28-day limitation period and he noted that there was no suggestion that there had been a miscalculation or oversight on the part of her advocate at the Authority investigation which would explain the delay.
The relevance of the costs issue was that the Authority had reserved costs in its determination but ruled that if the respondent sought a costs order then, failing resolution of the issue between the parties, it was required to file its application within 28 days of the date of the determination. What appears to have happened is that on 19 January 2012, Ms McLeod's advocate, Mr Taylor, and Mr Harrison reached agreement by telephone that costs would not be sought by the respondent on the basis that the agreement was in “full and final settlement of any outstanding claim that either party may have against the other including any payments.” It seems, however, that Mr Taylor had not obtained Ms McLeod's prior consent to the settlement and on 20 January 2012 he advised Mr Harrison by email that the offer he had agreed to had been rejected by Ms McLeod. From that point in time Mr Taylor withdrew as Ms McLeod's advocate and she has been represented in the matter by her husband.
Mr Harrison submitted that “the real reason for the delay is that the challenge is a response to the respondent's costs application.” In this regard, reliance was placed on a statement made in Mr Whittaker's affidavit that he believed the reason for the filing of the challenge (and its delay) was “more as a bargaining position and possibly to get out of the costs award, having reneged on the earlier agreement.”
In relation to Ms McLeod's camping ground employment, Mr Harrison submitted:
9. Ms McLeod's affidavit does not make any reference to the hours/days that she was working or why being busy in her Summer job would prevent her from considering a challenge and discussing this with either of her two representatives. This, it is submitted, is simply not a reason that could justify delay.
Mr Harrison submitted that it was “simply not credible that the applicant had not ‘focused’ on the Determination earlier”.
Mr Harrison made no specific claim of prejudice apart from referring to the costs of the litigation to date. He noted that Ms McLeod stated that she was of “very limited finances” and she had not yet made payment of the $3,500 costs award eventually fixed by the Authority. What the Court looks for, however, is prejudice that has been occasioned by the delay itself and, in that sense, the costs considerations raised by counsel cannot be categorised as prejudicial. In any event, given the substantially longer delay resulting from counsel's oversight as identified in [2] above, it would be difficult for the respondent to now substantiate an allegation of prejudice resulting from the applicant's delay. Mr Harrison's principal submissions in opposition, however, related to the merits, or more accurately the alleged lack of merit in the applicant's challenge. In counsel's...
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