A WORKER V A FARMER CA CA205/2009

A WORKER V A FARMER CA CA205/2009 24 July 2009THE EMPLOYMENT RELATIONS AUTHORITY ORDERED PERMANENT SUPPRESSION OF NAMES OF PARTIES, WITNESSES AND ANY DETAILS LIKELY TO LEAD TO THEIR IDENTIFICATION, INCLUDING THE LOCATION IN WHICH THE EVENTS OCCURRED. THAT ORDER IS STILL IN FORCE IN THE COURT OF APPEAL OF NEW ZEALAND CA205/2009 [2009] NZCA 326BETWEEN A WORKER Applicant AND A FARMER Respondent Hearing: 21 July 2009 Court: Hammond, Robertson and Baragwanath JJ Counsel: G E Slevin for Applicant N Cervin for Respondent Judgment: 24 July 2009 at 10 amJUDGMENT OF THE COURT A The application for leave to appeal is granted on the following question: On the facts found by the Judge, was it open to him to find: (1) the contract was frustrated; and therefore (2) there was no dismissal or other relevant action by the farmer; so that (3) s 103A has no application. B The applicant will have costs for a standard application on a band A basis and usual disbursements.REASONS OF THE COURT(Given by Hammond J) [1] We have before us an application under s 214 of the Employment Relations Act 2000 for leave to appeal to this Court from a decision of Judge Couch in the Employment Court at Christchurch: CC 3/09 CRC 49/07 20 March 2009. [2] We are minded to grant the application. Normally a grant of leave is not accompanied by reasons. However, as so often happens, counsel for the applicant had not favoured the Court by defining the question or questions of law he would have this Court address. This is a perennial problem: counsel must define the question(s) of law on which leave is sought, in the application. In Air New Zealand Ltd v Cliff (Practice Note) [2007] 3 NZLR 296, this Court said:[5] Before giving these reasons, we make one general observation. InWaitemata District Health Board v New Zealand Public Service Association[2005] 1 ERNZ 1058, this Court held that, on applications for leave to appeal from Employment Court decisions, it was incumbent on the applicant to identify the precise questions of law which the applicant asserted met the statutory criteria (para [16]). Air New Zealand Ltd did not do that in this case. The notice of application set out only "grounds of appeal". During the course of discussion between Bench and Bar we attempted, with some difficulty, to reformulate the grounds as questions of law. The difficulty in formulation principally arose from the fact that some of the grounds did not in truth contain questions of law. That is precisely why this Court has insisted applicants identify questions of law in their applications for leave. It is an important discipline on counsel and the Bench, and helps ensure that this Court does not exceed its limited jurisdiction under s 214 of the Employment Relations Act 2000.[3] We now add this. This error continues to be widespread. It disrupts the work of the Court. A typical Miscellaneous Motions list in the Court of Appeal contains (at least) several matters. Counsel – let alone the Court – cannot appropriately draft questions in court. That counsel cannot, or will not, draft specific questions in advance is also a clear signal that they do not clearly understand what is sought to be advanced, indeed what they are trying to put forward in general. The point may now have been reached where even successful applicants should be deprived of their costs for non-compliance with this essential obligation.[4] The circumstances of this case can be shortly stated. The applicant was employed in mid-2005 as a farm hand, and provided with accommodation on the farm. Certain events occurred which led to the farmer forming the view that the applicant worker had indecently assaulted the farmer's son. [5] When these circumstances came to the farmer's attention, he and his partner went to the applicant's hut just before midnight, woke him up, and fired him. The applicant was told to leave within half an hour, which he did. [6] In the Employment Relations Authority, the worker was held to have been unjustifiably dismissed. He was awarded certain remedies. But in the Employment Court it was held that the employment agreement had been discharged by "frustration", as an immediate result of the allegations. Judge Couch found that:[51] The change in circumstances caused by those allegations fundamentally changed the situation and made any further performance of the contract radically different from what the parties had undertaken when the farmer first employed the worker. The situation was such that it would have been unjust for the farmer to have been held to his obligations under the employment relationship after the allegations were made.[7] Mr Slevin complains that the decision of the Employment Court provides that an employer's subjective reaction to a sufficiently extreme allegation of serious misconduct can displace every prospective legal right afforded to an employee under an employment agreement. He says that is entirely inconsistent with the development of employment law by Parliament "and should be overturned by [the Court of Appeal]". [8] This Court has previously considered whether the doctrine of frustration may apply in the context of an employment agreement, and found that it may apply in some circumstances: Karelrybflot AO v Udovenko [2000] 2 NZLR 24. Blanchard J did, however, note that the doctrine would not easily be invoked (at [37]). However, that case was decided before the introduction of s 103A in the Act in 2004. That provision now specifically posits that whether a dismissal was justifiable must be determined on an objective basis, by considering what a fair and reasonable employer would have done in all the circumstances at the time the dismissal or action occurred.[9] The argument for the applicant is therefore that whatever the position might be on the application of a common law or statutory doctrine of frustration, the position in law in dismissal cases has been squarely overtaken by s 103A, which should have been, but was not, applied. [10] The argument for the respondent is that the employment agreement was frustrated, therefore there was no "dismissal", and s 103A has no application. [11] We consider this case raises question(s) of law that are of public importance. We frame the question this way: On the facts found by the Judge, was it open to him to find: (1) the contract was frustrated; and therefore (2) there was no dismissal or other relevant action by the farmer; so that (3) s 103A has no application. [12] Leave to appeal will be granted on those question(s). The applicant will have costs for a standard application on a band A basis and usual disbursements.Solicitors: Wynn Williams & Co, Christchurch for Applicant Bell Gully, Auckland for Respondent