New Zealand Fire Service Commission v Jeffrey Reginald McCulloch

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeRanderson J
Judgment Date10 May 2011
Neutral Citation[2011] NZCA 177
Date10 May 2011
Docket NumberCA43/2011

[2011] NZCA 177

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

Ellen France, Randerson and Wild JJ

CA43/2011

Between
New Zealand Fire Service Commission
Applicant
and
Jeffrey Reginald McCulloch
First Respondent

and

Boyd Gordon Raines
Second Respondent

and

New Zealand Professional Firefighters Union
Third Respondent
Counsel:

G C Davenport for Applicant

P Cranney for Respondents

Application for leave to appeal Employment Court (“EC”) decision — proceedings had been initially issued in the High Court (“HC”) — alleged tortious conduct by the respondent arising from a ban on Union members applying for and accepting “acting up” positions offered by the Fire Service — HC and then EC held that EC had exclusive jurisdiction to hear and determine proceedings between the parties — whether the EC had erred in law in its determination of issues under s81 Employment Relations Act 2000 (meaning of strike).

Held: The questions the Fire Service sought to raise on appeal did not disclose any seriously arguable question of law. The issues under s81 ERA had been the subject of concurrent findings in the EC and HC and the reasoning of the Chief Judge (“CJ”) in the judgment on appeal was persuasive. Pursuant to s81(1)(a)(i) ERA the ban was at least intended to reduce the normal performance of their employment by union member firefighters. Normal performance was not restricted to the performance only of the incidents of employment that were legal obligations. Normality was not to be equated with frequency. The temporary appointment of employees to any higher rank or position was specifically authorised in s66(1) Fire Service Act 1975 (provision in case of absence from duty) and acting up had occurred on a significant number of occasions over the years.

The CJ was correct to conclude that the normal performance of work included submitting expressions of interest for acting up positions and agreeing to take those positions when offered. It was also open to the CJ to conclude that the requirements of s81(1)(b) ERA were met – the Union ban amounted to the collective action of firefighter employees and was a combination or concerted action by them. This collective refusal to undertake that which was a normal incident of employment was of the essence of a strike under s81(1)(a)(i) ERA.

Leave to appeal declined.

JUDGMENT OF THE COURT

A The application to extend the time to appeal is granted.

B The application for leave to appeal is dismissed.

C The applicant must pay costs to the respondents as for a standard application on a Band A basis with usual disbursements.

REASONS OF THE COURT

(Given by Randerson J)

Introduction
1

The applicant (the “Fire Service”) seeks leave under s 214 of the Employment Relations Act 2000 (“the Act”) to appeal against a decision of the Employment Court. In that decision, Chief Judge Colgan held that the Employment Court had exclusive jurisdiction to hear and determine proceedings between the Fire Service and the respondents, the New Zealand Professional Firefighters Union (“the Union”) and two of its officials. 1

2

Initially, the Fire Service issued proceedings in the High Court alleging tortious conduct by the respondents arising from a ban on Union members from applying for and accepting “acting up” positions offered by the Fire Service. In brief, acting up refers to operational firefighters filling temporary vacancies in the command structure of the Fire Service which involve managerial or supervisory roles. This occurs on the understanding that the employees will revert to their operational roles after a period of time usually measured in weeks or a few months. The Fire Service alleges that two employees accepted acting up positions offered to them despite the Union ban and that the two employees were later intimidated by the respondents into relinquishing those positions.

3

The respondents were successful in the High Court in obtaining a stay of the proceedings on the footing that the Employment Court has full and exclusive jurisdiction to hear and determine a proceeding founded on tort which results from or is related to a strike. 2 The decision was based on the High Court's conclusion that s 99 of the Act applied so as to give the Employment Court exclusive jurisdiction to determine the dispute. The argument in the High Court and in the Employment Court involved essentially two questions:

  • (a) Whether the conduct of the respondent amounted to a strike within the meaning of s 81 of the Act; and

  • (b) Whether in terms of s 99(1)(a) of the Act, the “proceedings resulted from or are related to” a strike.

4

The contention by the Fire Service is that the conduct of the respondents does not amount to a strike and that, even if the conduct does amount to a strike, the proceeding does not result from or relate to that strike. The respondents' contention is that the imposition of the ban does amount to a strike but they will, in due course, submit that the strike was lawful on health and safety grounds. 3 If so, the respondents contend they are entitled to immunity from suit under s 99(3)(a) of the Act.

5

The application for leave to appeal was filed out of time and the Fire Service seeks an extension of time in that respect.

The questions of law the Fire Service seeks to argue on appeal
6

Section 81 of the Act relevantly provides:

Meaning of Strike

(1) In this Act, strike means an act that–

  • (a) is the act of a number of employees who are or have been in the employment of the same employer or of different employers–

    (i) in discontinuing that employment, whether wholly or partially, or in reducing the normal performance of it;

    … and

  • (b) is due to a combination, agreement, common understanding, or concerted action, whether express or implied, made or entered into by the employees.

7

Mr Davenport for the Fire Service submitted...

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2 cases
  • New Zealand Fire Service Commission v Jeffrey Reginald Mcculloch Coa
    • New Zealand
    • Court of Appeal
    • 10 May 2011
    ...COURT OF APPEAL OF NEW ZEALAND CA43/2011 [2011] NZCA 177 BETWEEN NEW ZEALAND FIRE SERVICE COMMISSION Applicant AND JEFFREY REGINALD MCCULLOCH First Respondent AND BOYD GORDON RAINES Second Respondent AND NEW ZEALAND PROFESSIONAL FIREFIGHTERS UNION Third Respondent Hearing: 19 April 2011 Cou......
  • Wendco (NZ) Ltd v Unite Inc
    • New Zealand
    • 12 June 2018
    ...s 100 for the granting of an injunction. 5 6 Employment Relations Act 2000, s 99(3). New Zealand Fire Service Commission v McCulloch [2011] NZCA 177, (2011) 8 NZELR 488 Mr Oldfield, counsel for Wendco, submitted that s 99(3) did not preclude an employer from obtaining relief in respect of p......

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