VIANNEY TUALA v LINFOX LOGISTICS (N.Z.) Ltd NZEmpC AUCKLAND

• Jurisdiction: New Zealand
• Judge: A D Ford
• Judgment Date: 04 November 2015
• Court: Employment Court
• Date: 04 November 2015
• Docket Number: EMPC 34/2015

[2015] NZEmpC 194

IN THE EMPLOYMENT COURT AUCKLAND

EMPC 34/2015

In the Matter of a challenge to a determination of the Employment Relations Authority

and

In the Matter of an application for a stay of execution

and

In the Matter of an application for security of costs

BETWEEN

Vianney Tuala

Plaintiff

and

Linfox Logistics (N.Z.) Limited

Defendant

Counsel:

S Fonua, counsel for the plaintiff

M Wisker and L Adams, counsel for the defendant

Application for an order staying execution of a costs determination pending the outcome of the plaintiff's challenge — application by the defendant for an order requiring the plaintiff to give security for costs — the plaintiff was challenging determinations of the Employment Relations Authority which rejected his claim that he had been unjustifiably dismissed — the Authority awarded costs against the plaintiff of $11,250 — the plaintiff had been dismissed for serious misconduct concerning failure to record an accident and alleged falsification of his timesheets and logbook — plaintiff was now receiving legal aid but had not been receiving it at the time of the Authority hearing — defendant had already incurred costs of over $70,000 and estimated another $60,000 would be incurred — defendant said there had been delays in prosecuting the proceeding and the plaintiff's case was without merit — plaintiff was impecunious — whether s45(2) Legal Services Act 2011 (liability of aided person for costs.. no order … unless exceptional circumstances) envisaged the making of a costs order against a legally aided plaintiff prior to the substantive hearing — whether there were exceptional circumstances under s45(3) LSA warranting the making of an order for security for costs — whether a stay should be granted.

The issues were: whether s45(2) Legal Services Act 2011 (LSA) (liability of aided person for costs — no order for costs unless exceptional circumstances) envisaged the making of a costs order against a legally aided plaintiff prior to the substantive hearing; whether there were exceptional circumstances under s45(3) LSA warranting the making of an order for security for costs; whether security for costs should be ordered; whether a stay should be granted.

Held: The merits of an appeal were a proper matter, and sometimes a decisive factor, in determining whether it was appropriate to order a stay. A proper assessment of the merits of the case was also an essential consideration in considering an application for security for costs ( Ambrose v Pickard).

Although the Authority had noted in its determination that T had claimed during the Linfox disciplinary process that his actions had been common practice amongst the Linfox drivers, it had made no reference to the evidence he had given at the Authority investigation on the subject or to the supporting evidence given by his three supporting witnesses.

Section 174(a) ERA (as it stood at the date of the determination) (Authority must give oral determination or oral indication of preliminary findings wherever practicable) provided that a determination had to state relevant findings of fact; state and explain findings on relevant issues of law; express the Authority's conclusions on matters or issues it considered required determination in order to dispose of the matter and specify what orders (if any) it made. It was arguable that under the mandatory requirements of s174(a) ERA the Authority should have made findings or expressed its conclusions on what appeared to have been the central plank of T's dismissal grievance.

In relation to the stay and security for costs applications, it could not be said that T's challenge lacked merit. In relation to the claim that changing logbooks was common practice by Linfox drivers, the merits were sufficiently obvious to be a critical factor in favour of a stay.

The aspect of the challenge that T had failed to comply with Linfox's health and safety policies would depend upon the Court's assessment of the credibility of the key witnesses.

T was impecunious with no prospect of obtaining financial backing from any other source. Ordering T to pay funds into Court or provide security would be an exercise in futility.

Although the definition of “civil proceedings” in the LSA did not specifically refer to proceedings under the ERA, the definition was not expressed to be inclusive and its scope was not an issue in the current proceeding. In the main, the conduct listed in s45(3) as warranting the making of a costs order could only be properly considered at the conclusion of the substantive hearing and after delivery of judgment in the case ( MacDonald v Whale Pumps Limited). Moreover, there were no exceptional circumstances of the type listed in s45(3) LSA which would warrant the making of an order for security for costs.

If security for costs was ordered, T's challenge would go no further. T was a worthy plaintiff with a genuine claim which should be permitted to proceed to a hearing.

T's application for a stay of the Authority's costs determination pending the outcome of the substantive hearing was granted.

Linfox's application for a security for costs order was dismissed.

INTERLOCUTORY JUDGMENT OF JUDGE A D Ford

Introduction

1 In this proceeding, the plaintiff, Mr Vianney Tuala, has challenged de novo two determinations of the Employment Relations Authority (the Authority). 1 In its first determination dated 13 January 2015, the Authority rejected a claim by Mr Tuala that he had been unjustifiably dismissed by his former employer, the defendant, Linfox Logistics (N.Z.) Limited (Linfox). In its second determination dated 27 February 2015, the Authority made a costs award against Mr Tuala in favour of Linfox in the sum of $11,250.

2 There are now two interlocutory matters before the Court. First, an application by Mr Tuala for an order staying execution of the costs determination pending the outcome of his challenge and, secondly, an application by Linfox for an order requiring Mr Tuala to give security for costs within a specified time period, failing which the challenge is to be struck out. The respective applications are strongly opposed.

3 It was agreed that the applications could be dealt with on the papers. Affidavits and supporting documentation, along with helpful submissions, have been produced by counsel. Judge Perkins, who has been handling the matter up to now, issued minutes to the parties dated 17 March 2015 and 18 June 2015 dealing with certain procedural issues and noted that the parties had indicated that it would be helpful if they could attend a Judicial Settlement Conference (JSC). Judge Perkins presided over a JSC on 13 August 2015. The matter did not settle and no further JSC is planned.

The background

4 The following background summary is taken from the dismissal determination and other documentation before the Court.

5 Linfox is Australia's largest privately owned logistics company. It operates throughout Australia, Asia and New Zealand. Linfox has approximately 900 employees in New Zealand with that number increasing over a Christmas period with the addition of approximately 200 temporary employees.

6 Mr Tuala commenced employment with Linfox in November 1995 as a Class 5 Truck Driver. He was employed pursuant to a Collective Employment Agreement between Linfox and the National Distribution Union. Mr Tuala continued in his employment as a driver until he was dismissed on 20 August 2009. The reasons given for his dismissal were:

• i. He had failed to comply with Linfox's health and safety policies; and

• ii. He had falsified his logbooks and runsheets (timesheets).

7 From the commencement of his employment Mr Tuala, who was based in Auckland, was employed by Linfox as a driver delivering goods to Progressive supermarkets but at the end of June or early July 2009, following a disciplinary matter, he was transferred to work from a South Auckland depot dealing with the Linfox Foodcap Contract. The new role involved Mr Tuala distributing fresh meat to Progressive supermarkets throughout the North Island.

8 On 15 July 2009, Mr Tuala was making a delivery to Woolworths Bayfair in Tauranga. He alleges in his pleadings (but this is denied by Linfox) that the lifting equipment on his vehicle failed to operate and as he, with the assistance of one of the customer's employees, was engaged in manually unloaded bins of meat, he injured his back. Mr Tuala claims, but again this is denied by Linfox in its statement of defence, that he notified his supervisor of the accident at the time but when he arrived back in Auckland, he could not find the supervisor to complete an incident report form. Linfox does accept that approximately 90 minutes after he left the Foodcap site at the end of his shift that day, Mr Tuala notified his supervisor that he was off on ACC and would not be coming into work the following day.

9 Subsequently, as part of an investigation into the incident involving Mr Tuala on 15 July 2009, Linfox's Transport Manager for the Foodcap contract, Ms Rene Reynolds, checked to see if Mr Tuala had noted the accident and his injury on his runsheet. She found nothing in his runsheet about the accident but while she was carrying out her check Ms Reynolds found two recent entries in Mr Tuala's runsheets and log book where he recorded that he had finished work 58 minutes and 40 minutes, respectively, after CCTV footage had shown him leaving the work depot. Those entries were for the 7– 8 and 8–9 of July 2009. The entry for 15 July, the day of the Tauranga incident, also showed an irregularity. Mr Tuala had recorded in his logbook finishing work at midnight but the CCTV footage had shown him leaving the premises at 11.07 pm.

10 Both of those matters, Mr Tuala's failure to record his accident and complete an incident report form along with the alleged falsification of his timesheets and logbook, were then...