[1] This is an application for leave to appeal under s 214 of the Employment Relations Act 2000 (the ERA) against an interlocutory decision of Judge Shaw concerning the conduct of an appeal to the Employment Court: EmpC CHCH CC19/07 and CRC 32/07 25 October 2007.

Background

[2] The applicant employed the respondent at its processing plant. The respondent was involved in an incident there. The applicant suspended her while it undertook an investigation into the incident. Eventually the applicant dismissed the respondent for serious misconduct.
[3] The respondent claimed her suspension and dismissal were unjustified. Having investigated the background and received submissions, the Employment Relations Authority issued a determination in which it found that the respondent’s dismissal was unjustified, but that the respondent had contributed to her dismissal. The Authority also found that the respondent’s suspension was justified.
[4] The Authority declined to order the applicant to reinstate the respondent, but did order the applicant to pay the respondent an amount to reflect her lost remuneration, subject to a 20 per cent deduction for contributory fault. In addition, the Authority ordered the applicant to pay the respondent $12,000 for distress and humiliation.
[5] The respondent elected to challenge certain parts of the Authority’s determination. In particular, the respondent says that the Authority erred in:

(a) Finding that her suspension was lawful;

(b) Finding that she contributed to her dismissal;
(c) Declining her application for reinstatement.
[6] The respondent indicated that she was not seeking a de novo hearing (s 179(3) and (4) of the ERA).

A dispute as to process

[7] An issue arose between the parties as to how the appeal should be conducted. In particular, the parties differed as to how evidence was to be dealt with. This issue was especially acute because there was a dispute as to whether the respondent had accepted a certain proposition in the course of the investigation before the Authority. In its determination, the Authority noted that the respondent had accepted under questioning by Mr Scott-Howman that some words she had used were open to a particular interpretation. Before Judge Shaw Mr Cranney said that the respondent did not accept that she had agreed that the particular interpretation was open. Accordingly, there was a dispute as to exactly what had happened before the Authority.
[8] We were advised that the Authority does not keep a verbatim record of its investigations, so that there was no recording or transcript to which reference could be made to resolve this dispute. Confronted with this difficulty Judge Shaw held:

[28] The parties agree that the challenge to the Authority’s determination should be limited to the issues which relate to the three broad findings on suspension, contribution, and reinstatement. The finding that [the respondent] was unjustifiably dismissed and the order that she be paid $12,000 compensation is not in issue.

[29] Counsel have proposed restrictions on the evidence to be led which in my view places impossibly artificial constraints on the way the Court can conduct the hearing. This is particularly so when counsel for the [applicant] advises that it may wish to rely on an alleged prior inconsistent statement made by the [respondent] at the Authority’s investigation meeting.

[30] The relevant facts in this matter are of very small compass. Those which give rise to [the respondent’s] dismissal are the same or closely linked to those relied on for her suspension, for the finding of contribution, and for the finding that she should not be reinstated.

[31] Because of this, I do not accept that the evidence relating to these three issues can be somehow isolated out from the rest of the case.

[32] I therefore direct that the matter will be heard by way of a full rehearing of the entire matter which was before the Authority with witnesses for each side filing their evidence in the usual way. The extent of the issues to be decided by the Court, however, are limited to the suspension, contribution, and reinstatement of [the respondent].

Application for leave to appeal

[9] In seeking leave to appeal, the applicant identified the following question of law as arising:

Whether, in determining the nature and extent of a non-de novo hearing, it is open to the Employment Court to order a full rehearing of the entire matter, in particular where:

(i) the Employment Court has held that the relevant facts involved in the non-de novo challenge are of very small compass; and

(ii) it is not open to the Court to depart from the conclusions of fact that are not the subject of the non-de novo challenge.

[10] In his submissions in support of the application Mr Scott-Howman made three points:

(a) Under the ERA the party wishing to challenge the Authority’s determination is entitled to elect whether to proceed by way of a non-de novo or a de novo hearing. The Court is not entitled to make orders as to the conduct of the hearing which effectively change the nature of the challenge;

(b) In electing a non-de novo hearing an appellant must particularise the specific errors of fact or law that are under challenge. The effect of the Court’s order was to expand the grounds of challenge beyond the specific errors alleged;
(c) In considering the matter on the basis of a full rehearing the Court will necessarily consider matters that are not the subject of challenge, and which are therefore not relevant to the Court’s task.
[11] Mr Scott-Howman said that the issue was one of public importance because the question of the appropriate procedure on a non-de novo appeal had regularly been the subject of confusion and debate.

Discussion

[12] We begin by saying that we have some sympathy for the parties as a result of the difficulty they faced because of the absence of a verbatim record of what occurred before the Authority. In some instances that may make it difficult for a party to exercise its right to challenge by way of a non-de novo hearing.
[13] That said, we do not consider that leave to appeal should be granted.
[14] First, what the Judge did in the present case was essentially a matter of case management prior to hearing. She acted under s 182(3)(b) of the ERA. While procedural error, if material, may be a ground of appeal against a decision on the merits, this Court is unlikely to intervene in such a matter prior to hearing.
[15] Second, case management decisions of this type are likely to be case specific, as this one clearly is. They will not often lend themselves to discussion at the level of general principle, which is the concern of this Court under s 214. Accordingly, we are not persuaded that the proposed appeal raises any issue of general or public importance.
[16] Third, the Judge was clearly aware that the issues before her are limited – see [28] and [32] of the extract quoted at [8] above. It is not correct to say that the Judge has effectively forced the parties into a de novo challenge.
[17] Fourth, we consider that the Judge’s decision was, in the circumstances, sensible, even inevitable. In part, this is because the sequence of events giving rise to the grievance was relatively short and limited. It would be impossible, or at least very difficult, to consider parts of the sequence in isolation, as Mr Scott-Howman seemed to contemplate. And in part it is because there is no contemporaneous record to which reference can be made to resolve the dispute about what happened before the Authority. The Judge will, therefore, have to draw her own conclusion about the likely effect of what the respondent said in the circumstances at the time.

Decision

[18] We dismiss the application for leave to appeal and order the applicant to pay the respondent costs of $1,500 plus usual disbursements.

Solicitors:
Bell Gully, Wellington for the Applicant
Oakley Moran, Wellington for the Respondent

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