TIMMINS V ASURE NEW ZEALAND LTD CA CA171/06

TIMMINS V ASURE NEW ZEALAND LTD CA CA171/06 7 December 2006IN THE COURT OF APPEAL OF NEW ZEALAND CA171/06BETWEEN BENJAMIN HARRY TIMMINS Applicant AND ASURE NEW ZEALAND LIMITED Respondent Hearing: 4 December 2006 Court: William Young P, Glazebrook and Arnold JJ Counsel: G A Paine for Applicant J M Appleyard and V E Donaghy for Respondent Judgment: 7 December 2006 at 2.15 pmJUDGMENT OF THE COURT A The application for leave to appeal is dismissed. B There is no order for costs. REASONS OF THE COURT(Given by William Young P) [1] Mr Ben Timmins was previously employed by Asure New Zealand Limited as a meat inspector. He and Asure disagreed as to the nature of his employment. He maintained that he was a permanent full-time employee while Asure claimed that hewas employed only as a casual worker (although it was prepared to employ him as a permanent seasonal worker). This dispute was subject to mediation and a settlement agreement was entered into on 21 December 2001. This agreement confirmed Mr Timmins' status as a permanent seasonal meat inspector during AFFCO's Imlay bobby calf season and that he would also be offered work as a casual meat inspector. The agreement, however, was subject to employment agreements for both positions being signed by the parties. [2] On 24 December 2001, Asure sought to tie its approval of the employment agreements to the deletion of a separate clause in the settlement agreement. But on 4 January 2002, Asure retreated from this position and made it clear that it no longer required the disputed clause to be deleted. In the meantime, Asure had given Mr Timmins some casual work. After 4 January 2002 Asure endeavoured to persuade Mr Timmins to sign an employment agreement. He, however, declined to do so, even though changes which he had requested had been made. [3] From early January 2002, Mr Timmins' employment status was uncertain. Between February and May 2002 Asure in effect disengaged itself from its relationship with Mr Timmins, arranging for his meat inspector's warrant to be cancelled and in the end, formally dismissing him. [4] Before the Employment Court, Mr Timmins sought relief as to: (a) alleged failure by Asure to comply with the settlement agreement; and (b) personal grievances associated with events since the mediation conference. [5] In the judgment in issue, Judge Shaw held that the settlement agreement never became unconditional and accordingly dismissed his claim. She also held that Mr Timmins' employment ceased on 4 January 2002. This latter conclusion disposed of all other claims made by Mr Timmins (and an associated application by him for an extension of time) as these claims all related to events which occurred after 4 January 2002.[6] Mr Timmins now seeks leave to appeal. [7] There could conceivably have been a claim in relation to Asure's attempt on 24 December 2001 to tie its approval of the employment agreement to the deletion of one of the clauses of the settlement agreement. This attempt could perhaps have been categorised as an unjustifiable action. But this is not exactly the way the case was pleaded or run, with Mr Timmins seeking a compliance order in relation to the settlement agreement (albeit that the form of the compliance order he sought was not clear). As well, such a claim could not have led to substantial relief, particularly as the Judge took the view (which seems to us to have been well open on the evidence) that Mr Timmins was fundamentally at fault for not signing the employment agreements which were proffered to him in January 2002. On this aspect of the case it is therefore not appropriate for us to grant leave to appeal. [8] The Judge's primary findings as to the nature of the applicant's employment were entirely factual and are not susceptible to appeal. Before us, Mr Paine sought to argue that the settlement agreement should be treated as defining and confirming an existing status as an employee. But to the extent to which the agreement did so, it was conditional on employment agreements being signed, something which never happened. In any event, if the settlement agreement were to have had the effect contended for by Mr Paine (ie to have changed Mr Timmins' employment status from what it would otherwise have been), it would necessarily have been an "individual employment agreement" and this Court does not have jurisdiction to review Employment Court decisions on the construction of such an agreement, see s 214(1) of the Employment Relations Act 2000. [9] The application for leave to appeal is dismissed. [10] Mr Timmins has applied for legal aid and is a sickness beneficiary. In those circumstances we see no point in making an order for costs.Solicitors: Bruce Andrews, Palmerston North for Applicant Chapman Tripp, Christchurch for Respondent