A Limited v H [2015] NZCA 99 (26 March 2015)

Last Updated: 30 March 2015

NOTE: ORDER OF THE EMPLOYMENT COURT PROHIBITING PUBLICATION OF CERTAIN INFORMATION REMAINS IN FORCE.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA638/2014 [2015] NZCA 99
BETWEEN	A LIMITED Applicant
AND	H Respondent

Hearing:	16 March 2015
Court:	Randerson, Wild and French JJ
Counsel:	J G Miles QC and P A Caisley for Applicant R E Harrison QC and R R McCabe for Respondent
Judgment:	26 March 2015 at 4.00 pm

JUDGMENT OF THE COURT

Leave to appeal is granted on the following question only:

Was the approach of the Employment Court in determining whether A Ltd had sufficiently investigated the allegations against H for the purposes of s 103A of the Employment Relations Act 2000 correct in law?
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REASONS OF THE COURT

(Given by French J)

[1] A Ltd seeks leave to appeal a decision made by Judge Corkill in the Employment Court holding that A Ltd’s dismissal of H was unjustifiable.^[1] The basis of the decision was that A Ltd’s investigation into a complaint of sexual harassment against H that led to the dismissal was flawed.
[2] We consider it reasonably arguable the Employment Court imposed a standard of inquiry which was too stringent and which bordered on the equivalent of a judicial investigation.
[3] We grant A Ltd leave to appeal on the following question:

Was the approach of the Employment Court in determining whether A Ltd had sufficiently investigated the allegations against H for the purposes of s 103A of the Employment Relations Act 2000 correct in law?

[4] A Ltd also sought leave to appeal three other aspects of the decision.
[5] The first was the Judge’s approach to disparity issues relating to sanctions imposed by A Ltd against other employees. In our view, the matters raised by A Ltd are case-specific questions of fact, not law, and therefore do not satisfy the prerequisites for granting leave under s 214 of the Employment Relations Act 2000.
[6] The second relates to the way in which the Judge worded his reinstatement order. The Judge stated that “Mr H is to be reinstated to his former position on the following terms”.^[2] The “terms” were then listed. Two matters in the list of terms commence with the words “It is recommended”. The recommendations include recommendations that H be directed to undertake counselling and that H be given a written warning.
[7] A Ltd contends the Judge exceeded his jurisdiction by making those recommendations. However, as counsel for H acknowledged, the recommendations are not binding. They are simply recommendations and the making of them does not raise any question of law of general or public importance.
[8] The third matter relates to a permanent non-publication order made by Judge Corkill prohibiting publication of the names of the parties and the complainant as well as any identifying particulars. A Ltd submits such an order should only be made in exceptional circumstances and there were none. However, the Judge’s approach is supported by the recent decision of this Court in Jay v Jay.^[3] We therefore decline to grant leave on that issue.
[9] The costs of the application are to lie where they fall.
[10] Finally, we record that our refusal to grant leave on the disparity issue should not be taken as precluding the Court from addressing the appropriate remedy should A Ltd succeed on appeal in relation to the ground on which we have granted leave.

Solicitors:
Kiely Thompson Caisley, Auckland for Applicant
NZALPA, Auckland for Respondent

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^[1] H v A Ltd [2014] NZEmpC 189.

^[2] At [50].

^[3] [2014] NZCA 445 at [118].