Commissioner of Police v Creedy [2006] NZCA 270; [2006] ERNZ 886 (26 September 2006)

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Commissioner of Police v Creedy [2006] NZCA 270 (26 September 2006); [2006] ERNZ 886

Last Updated: 20 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA121/06

BETWEEN COMMISSIONER OF POLICE
Applicant

AND MARK RAYMOND CREEDY
Respondent

Hearing: 18 September 2006

Court: William Young P, Robertson and Arnold JJ

Counsel: C C Inglis and C M Curran-Tietjens for Appellant
J A Hope for Respondent

Judgment: 26 September 2006 at 11 am

JUDGMENT OF THE COURT

A Leave to appeal is granted on the following question of law:

Was the Chief Judge wrong to conclude that the proceedings of the Police Tribunal were part of the Commissioner’s employment inquiry so that the actions of the Tribunal are subject to review as part of the hearing of the respondent’s personal grievance?

2. Leave to appeal is on the following question postponed for determination at the substantive appeal:

Was the Chief Judge’s conclusion as to ‘exceptional circumstances’ wrong in law?
____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

Introduction

[1] The Commissioner of Police seeks leave to appeal on two questions of law which arise from a decision delivered in the Employment Court by Chief Judge Colgan on 23 May 2006.
[2] The two questions of law as proposed are:

(a) Whether proceedings of a Police Tribunal (Tribunal) are, or are part of, the respondent’s employment inquiry and whether allegations of abuse of process by the Tribunal are amenable to challenge by way of personal grievance in the employment institutions; and

(b) Whether the fact that an employee and his/her representative “talk past” each other in respect of whether a grievance has been raised can amount to an exceptional circumstance which justifies the grant of leave to pursue a grievance out of time.

The litigation saga

[3] The dispute has a long and tortuous history:

• March 1989: Mr Creedy joined the police and was eventually promoted to Sergeant;
• September 2000: a complaint laid against Mr Creedy;
• 22 September 2000: Mr Creedy was stood down from duty;
• 16 December 2000: Mr Creedy was charged with 39 disciplinary offences under the Police Regulations 1992;
• Late 2000: Mr Creedy contacted his former police colleague (Mr Barrowclough) who was then a barrister in Australia and asked him to be his legal representative. Mr Barrowclough agreed and came to New Zealand, flatted with Mr Creedy and worked full-time on Mr Creedy’s case.
• 12 January 2001: Mr Creedy was formally suspended from duty; the Commissioner appointed Dame Augusta Wallace, a retired District Court Judge, as a Tribunal to investigate and report.
• Mid March 2001: s 12 inquiry under the Police Act 1958 begun by Dame Augusta;
• 4 April 2001: Mr Barrowclough sent a letter to Superintendent Cox, the District Commander, advising that notice was being given that Mr Creedy was commencing a personal grievance. The letter stated:

Pending the final determination of the disciplinary proceedings, Sergeant Creedy reserves his rights to pursue this personal grievance in due course.

• April 2001: There was some miscommunication between lawyer and client. Mr Creedy assumed his position was protected for the future and had a mistaken belief that Mr Barrowclough had responded that it was;
• July 2001: Mr Creedy consulted employment lawyers and he told them that he had raised the personal grievance;
• 29 August 2001: Dame Augusta completed her Inquiry and recommended dismissal;
• 18 September 2001: A Deputy Commissioner wrote to Mr Creedy outlining the results of the s 12 inquiry, the recommendation made and offering him a chance to reply;
• 17 October 2001: Mr Creedy applied to disengage. Mr Creedy PERFed and received a substantial monetary payment;
• 13 December 2001: Mr Creedy’s last day of engagement as a police officer;
• January 2003: Mr Creedy lodged a statement of problem alleging unjustified disadvantage and constructive dismissal;
• Mr Creedy applied for leave to pursue these complaints out of time.
• April 2005: the Employment Relations Authority dismissed the application holding that the respondent had failed to establish the necessary exceptional circumstances; and
• May 2006: the respondent successfully challenged that decision in the Employment Court.

The Employment Court approach

[4] The Chief Judge found, in relation to the constructive dismissal claim, that the fact that Mr Creedy and Mr Barrowclough talked past each other (given the context of their intense lawyer/client relationship) constituted an exceptional circumstance. The Employment Court also rejected the applicant’s argument that Mr Creedy’s application should be dismissed as it challenged the conduct of the Tribunal which could not properly be inquired into by employment institutions.

Leave to appeal issues

Was the Chief Judge wrong to conclude that the proceedings of the Police Tribunal were part of the Commissioner’s employment inquiry so that the actions of the Tribunal are subject to review as part of the hearing of the respondent’s personal grievance?

[5] The issue is whether the employment institutions have jurisdiction to review the actions taken by the Tribunal in investigating police misconduct. This clearly constitutes a question of law. Is the issue of sufficient importance to warrant granting leave to appeal?
[6] When a Commissioner is contemplating dismissal arising from alleged misconduct by sworn police officers a Tribunal is appointed: Police Act 1958, s 12. This is a mandatory provision: Commissioner of Police v Moore [2001] ERNZ 638 at [30] (CA). Mr Hope contended that the Tribunal became part of the dismissal process and therefore subject to the jurisdiction of the employment institutions. Ms Inglis argued that it was a separate entity which made a recommendation to the Commissioner but did not act on his behalf. She noted there were specific provisions for a person dissatisfied with the Tribunal process to apply for a re-hearing, and that the challenge by way of judicial review is available.
[7] Mr Hope also asserted that, as the Tribunal only relates to the police force which is relatively small in size, and as only a small number of Tribunals are established each year, the issue was not of general importance. We reject that argument for two reasons. First, it is wrong as a matter of principle for a Court to assume jurisdiction without authority over another body which is obliged to act judicially. Secondly, the police are an important public institution with their own legislation. Accordingly, the Court will be vigilant to ensure all activities are lawful.
[8] We are persuaded that there is not only a question of law, but one of general or public importance which warrants the further attention of this Court and leave should be granted to appeal on that aspect.

Was the Chief Judge’s conclusion as to ‘exceptional circumstances’ wrong in law?

[9] The second issue relates to the proper interpretation of two sections of the Employment Relations Act 2000.
[10] Section 114(4) provides that:

(4) On an application under subsection (3) [for leave to raise the grievance out of time], the Authority, after giving the employer an opportunity to be heard, may grant leave accordingly, subject to such conditions (if any) as it thinks fit, if the Authority—

(a) is satisfied that the delay in raising the personal grievance was occasioned by exceptional circumstances (which may include any 1 or more of the circumstances set out in section 115); and

(b) considers it just to do so.

[11] Section 115 provides that:

115. Further provision regarding exceptional circumstances under section 114

For the purposes of section 114(4)(a), exceptional circumstances include—

(a) where the employee has been so affected or traumatised by the matter giving rise to the grievance that he or she was unable to properly consider raising the grievance within the period specified in section 114(1); or

(b) where the employee made reasonable arrangements to have the grievance raised on his or her behalf by an agent of the employee, and the agent unreasonably failed to ensure that the grievance was raised within the required time; or

(c) where the employee's employment agreement does not contain the explanation concerning the resolution of employment relationship problems that is required by section 54 or section 65, as the case may be; or

(d) where the employer has failed to comply with the obligation under section 120(1) to provide a statement of reasons for dismissal.

[12] Ms Inglis submitted that the Employment Court erred in law in determining that the threshold test for exceptional circumstances could have been met in this case. She contended that the Employment Court ruling effectively lowered the threshold required for extending time and conflicted with the statutory scheme. She argued that the wording of s 115(b) indicated that Parliament intended that something more than a mistaken apprehension on the part of an employee and reliance on a representative would be required to justify the grant of leave.
[13] Mr Hope submitted that the Chief Judge did not err in law. He contended the application for leave was based on a challenge to the factual findings of the Chief Judge and was therefore not a question of law. He asserted that the Chief Judge correctly identified the law in relation to s 114. He argued that the unique nature of the relationship between Mr Creedy and Mr Barrowclough and the miscommunication amounted to an exceptional circumstance, as correctly identified by the Chief Judge.
[14] This Court in Wilkins & Field Ltd v Fortune [1998] 2 ERNZ 70 at 76, framed exceptional circumstances as:

... circumstances which are unusual, outside the common run, perhaps something more than special and less than extraordinary.

[15] Section 114 is undoubtedly influenced by s 115 and the question is whether, in the approach and interpretation adopted in the Employment Court, there has been an improper lessening of the bar.
[16] The application for leave is restricted to the question of constructive dismissal and does not affect the respondent’s right to have the Court consider his unjustified disadvantage personal grievance.
[17] As this is much more of a marginal issue, and as this Court is to be seized of the case, we have concluded that the question whether leave should be granted on this second issue should be postponed for final determination at the substantive hearing.

Result

[18] Leave to appeal is granted on the first issue and the question of leave on the second is postponed until the hearing of the substantive appeal.

Solicitors:
Crown Law Office, Wellington, for Appellant
Till Henderson King, Hamilton, for Respondent