ABLEOWL XL LIMITED V NEIL GLADDEN [2016] NZCA 94

DRAFT – 4 April 2016 at 9.15 amABLEOWL XL LIMITED V NEIL GLADDEN [2016] NZCA 94 [6 April 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA743/2015[2016] NZCA 94BETWEEN ABLEOWL XL LIMITEDApplicantAND NEIL GLADDENRespondentCourt: Harrison, French and Kós JJCounsel: Applicant by its director, P OultonRespondent in PersonJudgment:(On the papers)6 April 2016 at 11.45 amJUDGMENT OF THE COURTA The application for leave for an extension of time to appeal is dismissed.B The application for leave to appeal is dismissed.C There is no order for costs.____________________________________________________________________REASONS OF THE COURT(Given by Harrison J)Introduction[1] AbleOwl XL Ltd has applied to this Court for (a) leave to appeal a decision of the Employment Court in favour of the respondent, Neil Gladden,1 following determinations of the Employment Relations Authority (ERA)2 under s 214(2) of the Employment Relations Act 2000; and (b) an extension of time to appeal under r 29A of the Court of Appeal (Civil) Rules 2005. The parties have consented to both applications being determined on the papers.Background[2] AbleOwl specialises in providing Microsoft Excel spreadsheet software, and offering expertise and supplementary products to businesses and individuals. On 9 August 2012 the company entered into a written employment agreement with Mr Gladden to perform the role of a trainer/writer/consultant on a remuneration of $60,000 annually.3 However, over time AbleOwl's sole director and shareholder, Paul Oulton, came to the view that Mr Gladden did not have the required skill for the initial position. The parties agreed that he would take up a different role in telemarketing. The written employment agreement was not formally varied but it is not disputed that Mr Gladden would continue to receive the same annual remuneration of $60,000 as well as the potential to earn commission.4[3] AbleOwl's financial position declined, prompting the company to restructureto avoid redundancies. In February 2013 Mr Gladden agreed to a further variation to his employment agreement. The ERA found the parties agreed that Mr Gladden would receive a base salary of $2,500 per month with an entitlement to commission calculated (a) on points for new sales; or (b) a fixed basis when the renewal rate for the so-called Genie product exceeded a certain margin.51 Able Owl XL Ltd v Gladden [2015] NZEmpC 166 [EC decision].2 Gladden v Able Owl XL Ltd [2014] NZERA Auckland 329 (substantive); Gladden v Able Owl XL Ltd [2014] NZERA Auckland 358 (costs).3 EC decision, above n 1, at [5].4 At [5]–[6].5 At [9].[4] In May 2013, following a disagreement between the two of them, Mr Oultonterminated Mr Gladden's employment with AbleOwl on the ground of redundancy.Mr Gladden worked through his notice period. However, AbleOwl disputed his final claim for commission. Mr Gladden commenced a proceeding for unpaid commissions in the ERA. He succeeded there and was awarded arrears of commission, holiday pay and compensation as well as costs. AbleOwl appealed to the Employment Court.Employment Court[5] Mr Gladden claimed that the threshold to activate AbleOwl's liability to paythe second kind of commission, the fixed commissions, was satisfied during the period of his notice.6 Judge Perkins accepted Mr Gladden's account of the salary and commission arrangement, which was supported by contemporary documents, a schedule setting out likely income and his de facto supervisory role.7 The Judgedescribed Mr Oulton's contrary account as "confusing and contradictory"8 and doubted the reliability and veracity of supporting evidence offered by Ms Tan, a former AbleOwl employee.9[6] However, the Employment Court reduced the amount of the ERA's award toMr Gladden. It awarded him commission and holiday pay of $1,871.37 plus interest.It also upheld the ERA's determination that AbleOwl pay Mr Gladden $5,000towards his costs at first instance. As he represented himself on the appeal, Mr Gladden was not entitled to costs but was awarded disbursements.Decision[7] This Court may grant leave to appeal a decision of the Employment Court if it is satisfied that (a) there is a question of law to consider; and (b) that question6 At [10].7 At [34]–[37].8 At [37].9 At [32]–[33].ought to be submitted by reason of its general or public importance or for any other reason.10[8] AbleOwl formulates the following question of law for determination by this Court:Can the Employment Court disregard the signed employment agreement and documented variations of that agreement between the parties in making a finding based on oral evidence alone?[9] AbleOwl submits that Judge Perkins was wrong in law to rely on the verbal evidence of Mr Gladden in preference to documentary evidence. However, theJudge's decision was based solely on a disputed factual finding. He was satisfied that AbleOwl made an "unwarranted and unjustified deduction" of $1,732.75 fromMr Gladden's final payment.11 The Judge preferred Mr Gladden's evidence to that given by Mr Oulton. His finding does not give rise to any arguable error of law.[10] We would add that even if the question formulated by AbleOwl met the threshold requirement of a question of law, we would have dismissed the application because the question is not one of general or public importance.[11] It is thus unnecessary for us to address AbleOwl's submissions in support of its application for an extension of time to appeal under r 29A of the Court of Appeal (Civil) Rules.Results[12] The application for leave for an extension of time to appeal is dismissed.[13] The application for leave to appeal is dismissed.[14] There is no order for costs.10 Employment Relations Act 2002, s 214.11 EC decision, above n 1, at [30].