SAIPE v BETHELL (ALSO KNOWN AS TRUDE JEAN BETHELL-PAICE) [2021] NZCA 429 [3 September 2021]

SAIPE v BETHELL (ALSO KNOWN AS TRUDE JEAN BETHELL-PAICE) [2021] NZCA 429[3 September 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA211/2021[2021] NZCA 429BETWEEN BRIAN SAIPEApplicantAND TRUDE JEAN BETHELL (ALSO KNOWNAS TRUDE JEAN BETHELL-PAICE)RespondentCourt: Cooper and Brown JJCounsel: M C Donovan and S E Greening for ApplicantR J Hooker for RespondentJudgment:(On the papers)3 September 2021 at 10.00 amRecalled andReissued:20 October 2021JUDGMENT OF THE COURTA The application for leave to appeal is declined.B The applicant is to pay costs to the respondent for a standard applicationon a band A basis and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] Mr Saipe applies for leave to appeal under s 214(1) of the EmploymentRelations Act 2000 (the Act) against a decision of the Employment Court1 upholdinga decision of the Employment Relations Authority (the Authority)2 that Mr Saipe'sclaim for unjustified dismissal was filed outside the statutory limitation period of threeyears.3[2] Under s 214(3) of the Act, this Court may only grant leave to appeal if thequestion of law raised by the proposed appeal is one which by reason of its general orpublic importance or for any other reason ought to be submitted to this Court fordecision.Background[3] Ms Bethell and her husband own and operate Bethells Beach Cottages, aprovider of boutique holiday accommodation on Auckland's West Coast. Mr Saipeworked for Bethells Beach Cottages as a part-time assistant manager from November2012. By email dated 24 August 2013 he was dismissed by Ms Bethell. The emailstated that his engagement was ended "[a]s from this date 24th August 2013".[4] Mr Saipe responded in an email of 26 August 2013, the heading of whichincluded reference to "notice of my dismissal". He asserted that "an employmentrelationship problem exists between us" and he invited Ms Bethell to participate in amediation. He advised that he had contacted the Ministry of Business, Innovation andEmployment about available mediation dates. The following day he contacted theMinistry seeking a mediation date and followed that up with an email on 29 August2013.[5] On 26 November 2013 Mr Saipe wrote again to Ms Bethell advising that heintended to commence proceedings in the Authority, asserting that he had beenunjustifiably and summarily dismissed without warning. There was no evidence of any1 Saipe v Bethell [2021] NZEmpC 33, [2021] ERNZ 74 [Employment Court judgment].2 Saipe v Bethell [2018] NZERA Auckland 180 [Authority judgment].3 Employment Relations Act 2000, s 114(6).further contact between the two until Mr Saipe filed his claim for unjustified dismissalwith the Authority on 29 August 2016.[6] The Authority ruled that the dismissal occurred on 24 August 2013 andMr Saipe's personal grievance claims raised (by email) on 26 August 2013.4Consequently, Mr Saipe's claim had been filed outside the statutory limitation periodof three years for commencing an action in the Authority after the date on which thepersonal grievance was raised. The Authority declined Mr Saipe's application for anextension of time to file his personal grievance claims, finding that the grievanceswere not strongly arguable and there was no justification for the delay, even if it wasinsignificant and did not create any prejudice.5[7] Mr Saipe challenged the Authority's determination contending:6(a) his dismissal only took effect after a period of reasonable notice whichwould have resulted in an effective dismissal date of 2 September 2013;(b) his email of 26 August 2013 could not constitute the raising of apersonal grievance for unjustifiable dismissal as he had not beendismissed at that point;(c) his personal grievance was raised by his letter of 26 November 2013which was submitted to Ms Bethell within 90 days of the effective dateof dismissal; and(d) hence the claim for unjustified dismissal was filed with the Authorityon 29 August 2016, within three years of his raising the personalgrievance.4 Authority judgment, above n 2, at [35]–[37].5 At [74].6 Employment Court judgment, above n 1, at [25].The Employment Court judgment[8] In a decision delivered on 22 March 2021 the Employment Court upheld theAuthority's finding that the personal grievance claim was not filed within the requiredperiod.7 In Judge Holden's analysis the sequence of events gave rise to several issuesincluding (a) when Mr Saipe's dismissal became effective and (b) when he first raisedhis personal grievance.[9] On the first issue the Judge reasoned:[32] In considering whether an employee has been dismissed, the test is anobjective one – was it reasonable for somebody in the position of the employeeto have considered that their employment had been terminated?[33] Understandably, it is not part of Mr Saipe's case that the 24 August2013 email was not the instrument of his dismissal; the email wasunequivocal; Ms Bethell advises Mr Saipe that the business cannot continueengaging his services and requests that he cease using the Cottages' systems;he was asked to hand over login details. In his email of 26 August 2013,Mr Saipe recognises that Ms Bethell had dismissed him from his position inher email dated 24 August 2013.[34] Mr Saipe's argument rests on the effective date of the dismissal.Mr Saipe relies on cases where an employee has been paid their notice periodbut not worked it out, and the Courts have found that the employmentcontinues until the end of that notice period. The cases say whether that is soin particular circumstances is a question of fact. The mere fact of a paymentin lieu of notice does not itself prevent a termination from being a summarydismissal; but, if the payment is simply an alternative to the employerrequiring the employee to work out the correct period of notice, which hasbeen conveyed in clear and unambiguous terms, then that is a termination onnotice and the employment ends at the end of the notice period.(Footnotes omitted.)[10] With reference to the second issue the Judge found that, while Mr Saipe's letterof 26 November 2013 went into more detail about his concerns, his email of26 August 2013 was sufficient to advise Ms Bethell that Mr Saipe had a personalgrievance for unjustifiable dismissal that he wished to address.8 That was whats 114(2) of the Act required. Consequently the filing of the statement of problem withthe Authority on 29 August 2016 was beyond the three-year time limit.7 At [5].8 At [39].[11] However the Judge further observed that, if Mr Saipe had been able to pursuehis claim for unjustifiable dismissal, he would have been successful and would haveobtained orders for compensation for lost earnings and for humiliation, loss of dignityand injuries to his feelings in the order of $20,000, less $2,000 for contributoryconduct.9The application for leave to appeal[12] In his application for leave to appeal to this Court Mr Saipe submits threeproposed questions of law:(a) Did the Employment Court fail to apply the correct legal test todetermine the effective date on which the employee's employmentterminated in circumstances where the employer purported to terminatesummarily, and if so, what is the correct date of termination ofemployment?(b) Did the Employment Court fail to apply the correct approach forassessing the starting points for an award of compensation for hurt andhumiliation under s 123(1)(c)(i) of the Act?(c) Did the Employment Court fail to correctly exercise its discretion toreduce the award of compensation for humiliation under s 124 of theAct?[13] Mr Saipe acknowledges that the second and third proposed questions will onlyarise for consideration if he succeeds on the first question.Discussion[14] For Mr Saipe, Mr Donovan submits that the date when Mr Saipe's employmentcontract terminated is key because a personal grievance for unjustifiable dismissalcannot be raised until after the contract is at an end. Thus, if the effective date of9 At [5] and [56].dismissal was later than 26 August 2013, Mr Saipe could not have raised his grievanceby his email of that date.[15] Citing Paper Reclaim Ltd v Aotearoa International Ltd Mr Donovan submitsthat the correct legal test for ascertaining the date of termination of a contractrepudiated by one party is by reference to the response of the other party to thecontract.10 He argues that it was open to Mr Saipe to choose either to accept therepudiation in Ms Bethell's email of 23 August 2013, thereby bringing the contract toan end immediately, or to affirm the contract in which case the effective date oftermination would occur by reason of some later event — whether by reason of expiryof an implied reasonable period of notice or by the parties mutually agreeing to endthe contract.[16] Thus Mr Donovan contends that Mr Saipe's email of 26 August 2013, in whichMr Saipe sought to affirm the employment contract, was not an acceptance ofMs Bethell's repudiation. Consequently the contract of employment did not end on orbefore 26 August 2013 but continued until at least 2 September 2013 which was whenMr Saipe ceased to carry out work for Ms Bethell, or alternatively upon the expiry ofa reasonable period of notice. On this analysis Mr Saipe could not have raised apersonal grievance for his dismissal until after 2 September 2013 and hence it wassuccessfully raised by delivery of the subsequent letter of 26 November 2013.[17] Mr Saipe's argument involves two limbs. The reasonable notice propositionwas considered and rejected by the Judge.11 Whether Ms Bethell sought to terminateMr Saipe's employment summarily or on notice involved the interpretation of heremail. As this Court noted in Appleyard v Corelogic NZ Ltd the interpretation of aletter terminating employment is fact specific and, while it may involve a mixedquestion of law and fact, it does not raise an issue of general or public importance.12[18] The alternative proposition, which was at the forefront of Mr Donovan'sargument in support of leave, to the effect that by his email of 26 August 201310 Paper Reclaim Ltd v Aotearoa International Ltd [2007] NZSC 26, [2007] 3 NZLR 169.11 Employment Court judgment, above n 1, at [34]–[35].12 Appleyard v Corelogic NZ Ltd [2020] NZCA 572 at [16].Mr Saipe was rejecting Ms Bethell's repudiation of the contract and asserting anongoing contractual relationship, was not addressed in the judgment sought to beappealed. Hence there are no findings of fact or statement of conclusion on that lineof argument.[19] Mr Hooker for the respondent submits that is explicable for the reason that the"repudiation" proposition was not contained in any pleading, statement of claim, listof issues or evidence. Whatever the reason may be, it is not appropriate for this Courtto entertain an appeal on a question of law in the abstract, that is, without factualfindings and consequential conclusions by the lower Court. If Mr Saipe wished topursue the repudiation proposition, the avenue to do so was a request for a recall ofthe Employment Court's decision.[20] As we consider that the application cannot succeed in respect of the firstproposed question of law, it is unnecessary to consider the second and third questions.[21] Mr Hooker filed a memorandum objecting to the fact that a submission in replywas filed by Mr Saipe. While in the case of an oral hearing it will be unusual for thesubmissions timetable to provide for a reply by the appellant or applicant, in relationto miscellaneous applications, which in the normal course are determined on thepapers, the Registrar may permit a reply to be filed. However such a submission mustbe strictly in reply.[22] In the present case the reply submission was confined to comment on fourdecisions which were traversed in Mr Hooker's submission on behalf of Ms Bethell.While there may be differences in view as to whether a reply was necessary in theparticular circumstances, the submission itself was unobjectionable as to its scope.We do not consider the Registrar erred in permitting the reply submission to be filed.Result[23] The application for leave to appeal is declined.[24] The applicant is to pay costs to the respondent for a standard application ona band A basis and usual disbursements.Solicitors:Watermark Employment Lawyers, Auckland for ApplicantVallant Hooker and Partners, Auckland for Respondent