CADDY v VICE CHANCELLOR, UNIVERSITY OF AUCKLAND [2022] NZCA 195

CADDY v VICE CHANCELLOR, UNIVERSITY OF AUCKLAND [2022] NZCA 195 [18 May 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA556/2021[2022] NZCA 195BETWEEN DAVINIA LOUISE CADDYApplicantAND VICE CHANCELLOR, UNIVERSITY OFAUCKLANDRespondentCourt: French and Clifford JJCounsel: S R Mitchell for ApplicantP M Muir and R E Judge for RespondentJudgment:(On the papers)18 May 2022 at 4 pmJUDGMENT OF THE COURTA The application for leave to appeal under s 214(3) of the EmploymentRelations Act 2000 is declined.B The applicant must pay the respondent costs for a standard application on aband A basis with usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by French J)Introduction[1] Dr Caddy has applied under s 214 of the Employment Relations Act 2000 (theAct) for leave to bring an appeal against a decision of Judge Beck in the EmploymentCourt.1[2] In her decision, the Judge held that the termination of Dr Caddy's employmenton the grounds of redundancy was a justifiable dismissal.Background[3] Dr Caddy was employed by the respondent University under a collectiveemployment agreement as a senior lecturer in musicology. Following an externalreview in 2017, the University commenced a restructuring process as a result of whichDr Caddy's role was disestablished and she was made redundant.[4] Dr Caddy brought a claim for unjustifiable dismissal. Her claim was rejectedby the Employment Relations Authority,2 prompting Dr Caddy to challenge thatdetermination in the Employment Court.[5] Judge Beck found there were genuine reasons for the disestablishment of therole held by Dr Caddy and that the process followed by the University was one opento a fair and reasonable employer. She summarised her conclusions at the end of herjudgment as follows:[156] There were genuine reasons for the disestablishment of the role heldby Dr Caddy. It occurred in the midst of a comprehensive review andrestructure of the School of Music and was necessitated by both the financialperformance of the School and the strategic objectives underlying therestructure. The redundancy decision was substantively justified.[157] The process followed was one open to a fair and reasonable employer.If any defects were present, they were minor and did not result in Dr Caddybeing treated unfairly. Any allegations of bias or inadequacy in the processesused are not established.[158] The University investigated options in good faith that would haveprevented the loss of employment for Dr Caddy. Reasonable efforts were1 Caddy v Vice-Chancellor, University of Auckland [2021] NZEmpC 129, [2021] ERNZ 573.2 Caddy v Vice Chancellor, University of Auckland [2019] NZERA Auckland 275.made to redeploy Dr Caddy and she was given the opportunity to participatein the selection process for the new Music Studies role.[159] The terms of the Collective Agreement and the Review and RestructurePolicy and Procedures were complied with. There was no obligation toredeploy Dr Camp into the Music Education role that he was unsuitable for inorder to facilitate Dr Caddy's continued employment.[160] The University exhibited a willingness to discuss further outplacementor redeployment opportunities. As was her right, Dr Caddy chose not toengage in that discussion.[6] Dissatisfied with that outcome, Dr Caddy seeks to bring an appeal in this Court.The application for leave to appeal[7] The right of appeal to this Court from a decision of the Employment Court islimited to appeals on questions of law and is subject to a leave requirement. Unders 214(3), leave may be granted if in the opinion of this Court, the proposed questionof law is one that by reason of its general or public importance or for any other reasonought to be submitted for determination.[8] The proposed question of law is:Did the Employment Court apply the test required by s 103A when it foundthe applicant's dismissal to be justified?[9] Section 103A of the Act provides:103A Test of justification(1) For the purposes of section 103(1)(a) and (b), the question of whethera dismissal or an action was justifiable must be determined, on anobjective basis, by applying the test in subsection (2).(2) The test is whether the employer's actions, and how the employeracted, were what a fair and reasonable employer could have done inall the circumstances at the time the dismissal or action occurred.(3) In applying the test in subsection (2), the Authority or the court mustconsider—(a) whether, having regard to the resources available to theemployer, the employer sufficiently investigated the allegationsagainst the employee before dismissing or taking action againstthe employee; and(b) whether the employer raised the concerns that the employer hadwith the employee before dismissing or taking action againstthe employee; and(c) whether the employer gave the employee a reasonableopportunity to respond to the employer's concerns beforedismissing or taking action against the employee; and(d) whether the employer genuinely considered the employee'sexplanation (if any) in relation to the allegations against theemployee before dismissing or taking action against theemployee.(4) In addition to the factors described in subsection (3), the Authority orthe court may consider any other factors it thinks appropriate.(5) The Authority or the court must not determine a dismissal or an actionto be unjustifiable under this section solely because of defects in theprocess followed by the employer if the defects were—(a) minor; and(b) did not result in the employee being treated unfairly.[10] Mr Mitchell on behalf of Dr Caddy advanced several arguments to support thecentral contention that the Judge did not apply the s 103A test of whether the decisionwas open to a fair and reasonable employer. The key points can be convenientlysummarised as follows:(a) The Judge wrongly undertook a tick box exercise. She separatelyconsidered each of the factual issues that had been raised, such aswhether there were good reasons for the change, whether professorsshould have been excluded from selection for redundancy and whetherDr Caddy's position was in fact surplus, but never considered whetherthere was justification taking into account all of those factors in theirtotality.(b) Whether the redundancy was genuine is not the statutory test forjustification.(c) The Judge failed to take into account that the University's decisionresulted in the dismissal of a highly successful academic.(d) The Judge wrongly approached the issue of process entirely separatelyfrom the question of justification.(e) The Judge failed to consider whether the consultation process that wasfollowed was designed to prevent the loss of employment as requiredby the provisions of the collective agreement.[11] These issues are said to be of general importance because the correctapplication of s 103A impacts on the parties to every employment relationship.Mr Mitchell also emphasised the importance of this case to Dr Caddy personally, thedismissal effectively ending her academic career in New Zealand.Our view[12] In our view, the application fails to meet the threshold required under s 214before leave to appeal may be granted.[13] First, correctly analysed, the various arguments raised on behalf of Dr Caddyare essentially challenges to findings of fact dressed up as questions of law.[14] On a superficial level, the wording of some aspects of the judgment viewed inisolation might be interpreted to support Mr Mitchell's argument.3 However, thejudgment must be read in its entirety. We are satisfied that a proper reading of thejudgment as a whole shows beyond argument that the Judge was well aware of thes 103A test and that she did apply it. All of the factors she addressed clearly bore onthe question of what a fair and reasonable employer could have done. The applicantherself must have thought so because they were issues that she alleged had contributedto the dismissal being unjustified. The critical findings of fact were all in favour ofthe University and together led inexorably to the conclusion that the s 103A test hadbeen satisfied. It is not reasonably arguable in our view to suggest otherwise.[15] As for process, what the Judge said was that if an employer can show aredundancy is genuine and the consultation requirements have been complied with,3 See for example [156], quoted above.then that could be expected to go a long way towards satisfying the s 103A test.4 It isnot in our view seriously arguable to contend that this was an error.[16] Nor in our view is it seriously arguable to contend that the Judge did not applythe provisions of the collective agreement. They are expressly addressed in thejudgment, the Judge noting that the purpose of the consultation requirements was "toallow the parties sufficient opportunity to investigate options in good faith whichwould prevent any loss of employment".5 The Judge then went on to address in somedetail whether the University had discharged its obligation to avoid redundancy.6[17] Finally, for completeness we record that Dr Caddy's academic standing wasalso expressly mentioned in the judgment.7[18] The Court will not grant leave to hear an appeal which has no reasonableprospect of success and this case is, in our assessment, very much in that category.[19] We are also not persuaded that the proposed issues are ones of general or publicimportance. We acknowledge the importance of this case to Dr Caddy. But that on itsown is not enough. The proposed appeal is entirely case-specific. It does not raiseany legal issues of general or public importance that warrant determination by thisCourt.Outcome[20] The application for leave to appeal under s 214(3) of the EmploymentRelations Act 2000 is declined.[21] The respondent seeks costs. There is no reason why these should not followthe event and accordingly we also order that Dr Caddy must pay the respondent costsfor a standard application on a band A basis with usual disbursements.4 At [88].5 At [113]6 At [117]–[128].7 At [76].Solicitors:Garry Pollak & Co, Auckland for ApplicantSimpson Grierson, Auckland for Respondent