ALKAZAZ v ENTERPRISE IT LTD [2021] NZCA 13

ALKAZAZ v ENTERPRISE IT LTD [2021] NZCA 13 [15 February 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA652/2020[2021] NZCA 13BETWEEN AHMED ALKAZAZApplicantAND ENTERPRISE IT LIMITEDRespondentCourt: Miller and Goddard JJCounsel: Applicant in personR J Bryant for RespondentJudgment:(On the papers)15 February 2021 at 10.00 amJUDGMENT OF THE COURTA The application for leave to appeal to this Court is declined.B Mr Alkazaz must pay costs to Enterprise IT Ltd for a standard applicationon a band A basis with usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Goddard J)The application before this Court[1] Mr Alkazaz seeks leave to appeal to this Court from a judgment of theEmployment Court.1 The Employment Court dismissed a challenge to a determination1 Alkazaz v Enterprise IT Ltd [2020] NZEmpC 171 [Employment Court decision].of the Employment Relations Authority (the Authority) declining Mr Alkazaz'sapplication to reopen an investigation.2Background[2] In 2017 the Authority held that the dismissal of Mr Alkazaz by the respondent,Enterprise IT Ltd (Enterprise IT), was unjustified. The Authority ordered thatEnterprise IT pay Mr Alkazaz lost wages, compensation for humiliation, loss ofdignity and injury to feelings, and a penalty for a breach of his employmentagreement.3 The lost wages and compensation awarded by the Authority were reducedby 20 per cent due to Mr Alkazaz's contributory conduct.4[3] Neither party pursued a challenge against the Authority's substantive decisionunder s 179 of the Employment Relations Act 2000. However, more than a year afterthat decision was delivered, Mr Alkazaz sought an order that the Authority'sinvestigation be reopened. Mr Alkazaz sought to challenge the Authority's findingsin relation to contributory conduct, and the resulting reduction in the compensationawarded to him. The Authority declined to reopen its investigation.5[4] Mr Alkazaz brought a challenge to the Authority's reopening decision in theEmployment Court on a de novo basis. The Employment Court was required to makea fresh decision on his application. After carefully reviewing the background to theapplication, and the issues raised by Mr Alkazaz, Chief Judge Inglis was not satisfiedthat there had been an actual miscarriage of justice, or that a real or substantialpossibility or risk of a miscarriage of justice had been made out. Nor did she considerthat granting the application would be consistent with the interests of justice.The challenge was therefore dismissed.62 Alkazaz v Enterprise IT Ltd [2019] NZERA 560 [Authority reopening decision].3 Alkazaz v Enterprise IT Ltd [2017] NZERA Auckland 400 [Authority substantive decision].4 At [66].5 Authority reopening decision, above n 2, at [53].6 Employment Court decision, above n 1, at [26].Relevant leave provision[5] Mr Alkazaz's application for leave to appeal to this Court is made under s 214of the Employment Relations Act, which provides:214 Appeals on question of law(1) A party to a proceeding under this Act who is dissatisfied witha decision of the court (other than a decision on the construction of anindividual employment agreement or a collective employmentagreement) as being wrong in law may, with the leave of the Court ofAppeal, appeal to the Court of Appeal against the decision; andsection 56 of the Senior Courts Act 2016 applies to any such appeal.(3) The Court of Appeal may grant leave accordingly if, in the opinion ofthat court, the question of law involved in that appeal is one that, byreason of its general or public importance or for any other reason,ought to be submitted to the Court of Appeal for decision.Grounds of application[6] Mr Alkazaz summarises the questions of law he wishes to raise on appeal asfollows:a. Shall the Appellant lack of legal knowledge and English being hissecondary language be used in his favour to be granted leave to reopenthe Authority or get granted an alternative remedy as leave to challengehis determination by the Employment Court as for the Appellant theProvision of the Employment Relations Act seemed more open endedthan what was identified in the Employment Court's judgement.b. Shall the law's provision lack of clarity regarding what constitutes validground for reopening the Authority's investigation be a ground for theAppellant to be granted leave to Appeal on question of law.c. Shall the Perjury committed by the Defendant's witnesses at theEmployment Relations Authority be examined by way ofcross examination and accordingly the Plaintiff would be able to callthese witnesses as hostile witnesses while the Court's perception of thelaw led it to judge otherwise and set aside all summonses.d. Is it lawful practice for the Employment to disregard over 99% of theevidence of Perjury detailed in the Appellant's Affidavit that waspresented to the Employment Court in more details and furtherelaboration during the hearing, to be disregarded due to Mr Speers whowasn't even witness of any these events, or even was there at theEmployment Relations Authority's investigation for his evidence tocount in favour of the Appellant's evidence that was supported ofrelevant documentation. There was definitely error in practicing thelaw in this regard.e. How the law was practiced to digest the evidence presented to the courtand accordingly wishes to bring his Appeal forward to have thisevidence examined with proper scrutiny by the Court of Appeal andfurther review of the law practices in this case.[7] Enterprise IT opposes the application, on the basis that:(a) Mr Alkazaz has not identified any question of law. He accepts the lawas applied by the Chief Judge.(b) No question of law that ought to be considered by this Court arises fromthe Employment Court decision.(c) Mr Alkazaz has failed to provide the Court with any evidentialfoundation justifying the grant of leave.(d) The application is an attempt to reopen factual issues and introducemore evidence that, with the benefit of hindsight, Mr Alkazaz wisheshe had introduced in the Employment Court.(e) There is no basis on which to disturb the Employment Court decision.(f) The application is misconceived and without merit.[8] Enterprise IT seeks costs and usual disbursements against Mr Alkazaz inrelation to the application.Analysis[9] None of the issues identified by Mr Alkazaz is a question of law in respect ofwhich leave could be granted under s 214 of the Employment Relations Act.In particular, Mr Alkazaz has not identified any question of law in relation to the testfor reopening an investigation that he says was incorrectly decided by theEmployment Court. We accept that Mr Alkazaz may have been confused about theappropriate procedure to follow. But neither that confusion nor the fact that Englishis Mr Alkazaz's second language gives rise to any relevant question of law for thepurposes of s 214 of the Act. The only question of law that might arise from theconcerns expressed by Mr Alkazaz relates to the grounds for reopening an Authorityinvestigation (though his concerns appear to focus on the difficulty he experienced inunderstanding those grounds, rather than on the content of the test articulated by theEmployment Court). But that issue is well settled: it is not an issue of general or publicimportance, or one that otherwise merits consideration by this Court.[10] Nor has Mr Alkazaz identified any question of law arising out of the evidencebefore the Authority or the Employment Court, or the new documentation obtained byMr Alkazaz from a third party. The matters identified by Mr Alkazaz are not questionsof law. Rather, they relate to the way in which the Employment Court applied the lawin the particular factual circumstances of his case. These are not issues in respect ofwhich leave to appeal to this Court can be granted under s 214 of the EmploymentRelations Act.[11] As the successful party in respect of this application, Enterprise IT is entitledto costs as prescribed by r 53G of the Court of Appeal (Civil) Rules 2005, fora standard application on a band A basis (which amounts to $956), with usualdisbursements.Result[12] The application for leave to appeal to this Court is declined.[13] Mr Alkazaz must pay costs to Enterprise IT Ltd for a standard application ona band A basis, with usual disbursements.Solicitors:Aspiring Law Ltd, Wanaka for Respondent