PETER DAVID HALL v DIONEX PTY Ltd NZEmpC AK
| Jurisdiction | New Zealand |
| Judge | Christina Inglis |
| Judgment Date | 07 March 2013 |
| Court | Employment Court |
| Docket Number | ARC 66/12 |
| Date | 07 March 2013 |
IN THE MATTER OF special leave to remove Employment Relations Authority proceedings
ARC 66/12
IN THE EMPLOYMENT COURT AUCKLAND
Application for special leave to have employment relationship problem removed to the Employment Court — applicant dismissed by person who was not an employee of the applicant's employer — applicant argued that the task of disciplinary sanction could not be transferred or assigned to a non-employee without his consent or notice to him or consultation — whether there was a significant question of law justifying the transfer under s178(2)(a) Employment Relations Act 2000 (the Authority may order removal if important question of law likely to arise other than incidentally) — whether having met the criteria in s178(2), the Court was required to grant application.
Tony Drake, counsel for plaintiff
Daniel Erickson, counsel for defendant
JUDGMENT OF JUDGE Christina Inglis
The applicant has applied, pursuant to s 178(3) of the Employment Relations Act 2000 (the Act), for special leave to have an employment relationship problem removed from the Employment Relations Authority (the Authority) to the Employment Court.
The Authority, in its determination dated 31 August 2012, 1 had declined the applicant's earlier application for removal. Section 178(3) provides that in determining an application for special leave the Court must apply the criteria set out
in s 178(2)(a)-(c) of the Act. Only one is relevant in the context of the current application, namely whether an important question of law is likely to arise other than incidentally. 2The questions of law that the applicant contends will arise, and which justify removal to this Court, are:
1. Did the contract of employment contain a term, implied by law, that the employer would itself conduct any disciplinary procedure, strictly in accordance with its contractual and statutory obligations?
2. Was it justifiable for the respondent to assign or transfer to a person who was not a director, officer or employee of the respondent the rights and obligations which the respondent had and owed to the applicant when conducting a disciplinary process involving the applicant, the outcome of which could be dismissal from his employment, without first –
(a) obtaining the applicant's agreement to such an assignment or transfer; or
(b) giving the applicant reasonable notice of such an intended assignment or transfer; or
(c) consulting with the applicant?
3. If it was not justifiable for the respondent to have transferred or assigned any rights and obligations (as referred to in question 2 above), did this vitiate the decisions and actions taken on behalf of the respondent during the disciplinary process?
4. Did the action which the respondent took (as referred to in question 2 above) lawfully authorise the person referred to in question 2 to dismiss the applicant from the respondents' employment?
5. Did the respondent's obligations to act in good faith require it to provide to the applicant the information regarding the assignment or transfer of rights and obligations to the person referred to in question 2 above when the applicant requested to be provided with that written information prior to dismissal?
The respondent opposes the application for special leave, essentially on the basis that the claim does not give rise to any important question of law. Rather, the respondent says that the claim will fall to be determined on the facts, and that even if this is not so, the Court ought to exercise its residual discretion against the grant of leave. The latter submission gave rise to a further area of dispute between the
parties. The applicant submits that once one or more of the qualifying criteria are met the Court is required to grant leave: no residual discretion exists. I do not accept that submission, for reasons set out belowThe facts, as far as they can be discerned at this early stage, can be drawn from the affidavits filed in support of, and in opposition to, the application for leave. They can be summarised as follows.
The applicant commenced employment with Dionex Pty Limited (the respondent) on 24 May 2004, initially in the position of Technical Representative New Zealand and later as Sales and Service Manager for New Zealand. He reported directly to the respondent's Country Manager. The Country Manager was also the respondent's director.
The respondent was part of Dionex Corporation worldwide, which was acquired by Thermo Fisher Scientific Inc in May 2011. From May 2011 the respondent became a subsidiary of the Thermo Fisher Group of companies. Following its acquisition, the Country Manager reported to the Category Manager - Analytical Instrumentation for Thermo Fisher Scientific Australia Ltd, who in turn reported to the Director of Scientific Australia, with a dotted line of responsibility to the Director, Scientific New Zealand for New Zealand business. At the relevant time, Ms Amanda Cameron held this last position. 3 It is common ground that she was not an employee of the respondent company.
In early July 2011, Thermo Fisher Scientific New Zealand Ltd (Thermo Fisher NZ) undertook a process of integrating Dionex employees into its structure. The respondent contends that the integration process had been completed by the time the applicant was dismissed, and that the respondent was Thermo Fisher in all but its strict legal status. Ms Cameron deposes that the applicant was never an employee of Thermo Fisher NZ.
Mr Hall's dismissal arose in the context of a broader disciplinary enquiry, involving a large number of Dionex managers, including Mr Hall's manager (the Country Manager). His manager reported to Ms Cameron. Mr Hall's manager was dismissed on 12 December 2011, although he remained as a director until 12 January 2012.
The Country Manager was one of three directors of Dionex. Neither of the other two directors was based in New Zealand. One was based in South Australia, the other in Massachusetts. It was the Massachusetts director who purported to delegate authority to Ms Cameron to undertake the disciplinary investigation and impose any disciplinary sanction in respect of the applicant's alleged wrongdoings.
Mr Hall was dismissed on 23 December 2011. He had earlier been suspended following a meeting on 12 December 2011 with Ms Cameron. Ms Cameron made the decision to both suspend, and then dismiss, Mr Hall.
It is Ms Cameron's role in the disciplinary process that is at the heart of the substantive claim, and the application for special leave. In particular, it is contended that the respondent could not justifiably have transferred to Ms Cameron the statutory, contractual, and common law obligations it says were owed to the applicant. A plethora of other alleged deficiencies in the process leading up to the applicant's dismissal, and the decision to dismiss, are advanced on his behalf in the statement of problem.
On an application for special leave the onus is on the applicant to establish that an important question of law is likely to arise in the matter other than incidentally. It is not necessary that the question of law is difficult or novel. As the Court observed in McAlister v Air New Zealand Ltd: 4
The importance of a question of law can be gauged by factors such as whether its resolution can affect large numbers of employers or employees or both. Or the consequences of the answer to the question are of major
significance to employment law generally. But importance is a relative matter and has to be measured in relation to the case in which it arises. It will be important if it is decisive of the case or some important aspect of it or strongly influential in bringing about a decision of the case or a material part of it.
The applicant contends that his employment agreement contained an implied term that Dionex would undertake any disciplinary enquiry and/or impose any disciplinary sanction and that it was not permissible for Dionex to delegate that task to a non-employee, Ms Cameron. This, it is alleged, renders the applicant's dismissal procedurally unjustified. Dionex say that Ms Cameron was given the authority to act by a director of Dionex and was accordingly entitled to carry out the disciplinary process.
Mr Drake, for the applicant, submits that the relationship between employer and employee is a personal one, as reflected in various provisions of the Act. 5 He also points out that s 4 does not appear, on its face, to contemplate the assignment or transfer of an employer's (or an employee's) good faith obligations, which an employer is required to comply with when making decisions affecting the continuation of an employee's employment. Mr Drake submitted that if the applicant's contract of employment is found to have contained an implied term of the sort alleged then, on that ground alone, the dismissal will have been both procedurally and substantively unjustified.
Mr Erickson, for the respondent, submitted that the question of whether Ms Cameron ought to have been involved is unlikely to be determinative of the final result. That is because the justification or otherwise for a decision to...
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