Professor Christopher Ohms v Vice Chancellor Auckland University of Technology

• Jurisdiction: New Zealand
• Judge: D Ford
• Judgment Date: 16 October 2013
• Court: Employment Court
• Docket Number: ARC 35/13
• Date: 16 October 2013

In the Matter of an application for special leave to remove proceedings to the Court

BETWEEN

Professor Christopher Ohms

Applicant

and

Vice Chancellor Auckland University of Technology

Respondent

[2013] NZEmpC 191

ARC 35/13

IN THE EMPLOYMENT COURT AUCKLAND

Application for special leave to remove proceedings to the Employment Court pursuant to s178(3) Employment Relations Act 2000 (important question of law likely to arise other than incidentally) — parties were in ongoing employment relationship — employee had received treatment for workplace stress — disputes arose between the employee and employer as to the employee'fitness to return to work — employee produced fitness certificate from his psychiatrist but employer invoked clause in collective agreement and insisted on fitness certificate from a medical practitioner nominated by it — employee said that important issues of law arose relating to whether an employer was using a right to restrict the employee from attending work for illegitimate purposes and who “owned” sick leave and whether it should be debited where the employer directed the employee to stay away — whether the issues involved questions of law that arose other than incidentally — whether the respondent'counterclaim precluded removal.

Appearances:

Rodney Hooker, counsel for the applicant

Penny Swarbrick, counsel for the respondent

JUDGMENT OF JUDGE A D Ford

Introduction

1 The applicant, Professor Christopher Ohms, currently holds the position of Professor of Law and Taxation at the Law School of the respondent, the Auckland University of Technology (AUT). In this proceeding he seeks special leave for an order that an employment dispute he currently has before the Employment Relations Authority (the Authority), be removed to this Court for hearing and determination without the Authority investigating it. The application, which is opposed by AUT, is made pursuant to s 178(3) of the Employment Relations Act 2000 (the Act).

2 Application for removal was initially made to the Authority itself, but in a determination dated 13 May 2013, 1 the Authority declined to make an order for removal and indicated that it could conduct an investigation meeting in August or September 2013.

3 An unusual feature of the case is the fact that in a minute dated 12 July 2013, Chief Judge Colgan raised for the parties' consideration questions about the professional relationships between the Auckland based Employment Court Judges and the AUT Law School. After hearing from counsel on the matter, the Chief Judge, in a subsequent minute dated 23 July 2013, ruled that it would be preferable if none of the Auckland based Judges dealt with this case.

4 As indicated, the application is made pursuant to s 178(3) of the Act which, relevantly, provides that in determining an application for special leave the Court must apply the criteria set out in paras (a) to (c) of subs (2). Only the criteria in para (a) is relevant to the present application. It provides that removal may be ordered if an important question of law is likely to arise in the matter other than incidentally.

The “important questions of law”

5 The statement of problem filed in the Authority is a lengthy document, encompassing over 118 paragraphs. In a memorandum filed on 5 August 2013, counsel for the applicant, Mr Hooker, identified and made submissions on what he contended were four important questions of law. In his oral submissions counsel “reframed” those questions as follows:

First Question

• (a) Is it lawful for an employer to direct an employee to leave the workplace and to remain away from the workplace without prior consultation with the employee about his medical condition or without any medical advice where the employer has concerns about whether the employer is providing a safe work place for the employee?

• (b) Does an employee have a right to attend the workplace when he considers he is fit for work and/or when he is told by his medical practitioner that he is fit for work?

Second Question

Where an employee is directed to remain away from the workplace by the employer on sick leave because the employer is concerned that the employee may not have a safe work place at the employer'workplace is the employer entitled to regard the employee as on sick leave and debit the employee'daily absence against his sick leave entitlement?

Third Question

Is an employee Professor A, who performs the same duties as another Professor B, entitled to be paid the same as Professor B where the collective agreement sets the range of salary to be paid to the class of Professors or where the Professor B is paid more than the highest salary specified in the salary range?

Fourth Question

Can the Employer invoke clause 3.3.3 (a) when the medical practitioner for the Employee has stated that the Employee is fit for work in circumstances where the Collective Agreement states:

• 3.3.3. (a) If as a result of physical or mental incapacity the Employee is unable to perform the duties of the position the Employer:

  • (i) will consult with TEU on behalf of the Employee;

  • (ii) may require the Employee to undergo a medical examination, at the Employer'expense, by a registered medical practitioner nominated by the Employer, or if the Employee wishes, two registered medical practitioners, one nominated by the Employer and the other by the Employee;

If the Employee declines to undergo the medical examination as required by the Employer, can the Employer stop salary payments to the Employee?

6 Counsel for AUT, Ms Swarbrick, claimed in her submissions that none of the questions posed by the applicant are important questions of law that will arise other than incidentally. Ms Swarbrick also stressed the fact that the parties are in an ongoing employment relationship and that, in those circumstances, it is best that the matter be dealt with by the Authority because, as counsel expressed it, “the Authority'informal investigative procedures are better suited to supporting a successful employment relationship.”

The facts

7 To understand the context in which the alleged important questions of law arise, it is necessary to briefly outline the factual background. It was clear from argument before me, however, that many of the factual issues will be keenly contested and for that reason I will endeavour to confine my observations to what essentially appears to be matters of common ground.

8 Professor Ohms has been employed by AUT since October 2003. In April 2005 he was appointed to the position of Professor of Law and Taxation. His terms and conditions of employment include the Academic and Associated Staff Members Collective Agreement (the collective agreement) between the Tertiary Education Union and AUT.

9 In late 2011, Professor Ohms became concerned about the implications of the appointment of another Professor specialising in tax law who was paid a higher salary than he was. The Authority noted that Professor Ohms believed the appointment was a precursor to his own redundancy. He was also concerned about alleged bullying by his immediate manager and he began to suffer from stress.

10 On 2 March 2012, Professor Ohms consulted a doctor and was referred to a specialist for stress treatment. In its determination, the Authority outlined the subsequent developments in these terms:

[4] … He sought medical attention, and in March 2012 he made AUT aware both that he was seeking such attention and of the reasons for his stress. His written account of the reasons included a description of symptoms which he said were akin to post traumatic stress disorder. He believed, however, that he was fit for work.

[5] The material led AUT to conclude an investigation was necessary. By letter dated 6 March 2012 it expressed concern that Professor Ohms' stress would be exacerbated if he remained at work. It required him to remain away from the workplace on paid sick leave while it obtained further information about the causes of the stress, and until it could be assured either that there was no risk to his health or the risk could be managed.

[6] Professor Ohms says that, although he was fit for work as at 6 March 2012, subsequent difficulties and disagreements associated with his participation in the investigation caused his health to deteriorate. By about early April he was no longer fit for work. He provided medical certificates to AUT in support of his lack of fitness to work.

[7] By letter dated 28 May 2012 AUT advised Professor Ohms of his current sick leave and annual leave entitlements. His outstanding entitlement to sick leave was exhausted on 6 June 2012. He has been absent on paid special leave since then.

[8] By letter to Professor Ohms' solicitors dated 7 June 2012 AUT sought: more information on the nature of Professor Ohms' current illness; and views on a proposal that he undergo a medical examination under clause 3.3.3.

UT was not satisfied as to his fitness to work or that his stressors had been dealt with so that the workplace was safe for him. The parties attended mediation in August and November 2012, but were unable to resolve the matter.

[10] In December 2012 AUT invoked clause 3.3.3 to require Professor Ohms to undergo a medical examination with a practitioner of its choice.

[11] Further exchanges between the parties over that matter led to the provision of further reports from Professor Ohms' doctors indicating Professor Ohms was fit to work. AUT considers the reports do not address important questions associated with Professor Ohms' health and safety in the workplace. It believes it does not have enough information to ensure his safety at work, and in turn considers it cannot allow him to return to work.

The Law

11 The legal principles relevant to applications for special leave to remove are well established. They were summarised by this Court in McAlister v Air New Zealand Ltd: 2

[10] Even if an important...