New Zealand Fire Service Commission v Jeffrey Reginald McCulloch

• Jurisdiction: New Zealand
• Judge: Randerson J
• Judgment Date: 10 May 2011
• Neutral Citation: [2011] NZCA 177
• Docket Number: CA43/2011
• Court: Court of Appeal
• Date: 10 May 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

[2011] NZCA 177

Court:

Ellen France, Randerson and Wild JJ

CA43/2011

IN THE COURT OF APPEAL OF NEW ZEALAND

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).

Counsel:

G C Davenport for Applicant

P Cranney for Respondents

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 there were three questions of law arising from the decision of the Employment Court in relation to s 81. The form in which these questions are put by the Fire Service is not appropriate since they are expressed in the form of leading questions which suggest the answers. However, the essential focus of Mr Davenport's argument is that the Employment Court erred in determining the acts of the respondents were aimed at “reducing the normal performance” of the employment of firefighters by the Fire Service. He submitted that expressing an interest in an acting up position is entirely voluntary; there is no obligation on the part of the Fire Service to accept any application; if accepted, the new position represents a different employment from that in which the firefighter is normally engaged; and the normal employment of the firefighter concerned remains as it was previously.

8 Mr Davenport also submitted that the...