DIAMOND LASER MEDISPA TAUPO LIMITED v THE HUMAN RIGHTS REVIEW TRIBUNAL [2020] NZCA 437

DIAMOND LASER MEDISPA TAUPO LIMITED v THE HUMAN RIGHTS REVIEW TRIBUNAL [2020]NZCA 437 [22 September 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA616/2019[2020] NZCA 437BETWEEN DIAMOND LASER MEDISPA TAUPOLIMITEDFirst AppellantOLIVIA JANE BLAKENEY-WILLIAMSSecond AppellantRICHARD HUGH BLAKENEY-WILLIAMSThird AppellantAND THE HUMAN RIGHTS REVIEWTRIBUNALFirst RespondentZELINDA DORIASecond RespondentHearing: 12 August 2020Court: French, Cooper and Collins JJCounsel: G H J Brant for AppellantsS R G Judd and E F Tait for Second RespondentJudgment: 22 September 2020 at 9 amJUDGMENT OF THE COURTA The appeal is dismissed.B The appellants must pay the second respondent costs for a standard appealon a band A basis together with usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by French J)Introduction[1] The appellants are facing a claim of discrimination in the Human RightsReview Tribunal at the suit of a former employee. They applied for an order strikingout the claim for want of jurisdiction. The Tribunal dismissed the application,1prompting the appellants to seek judicial review in the High Court. The judicial reviewproceedings were dismissed by Grice J who held the Tribunal did have jurisdiction.2[2] Dissatisfied with that outcome, the appellants now appeal the High Courtdecision. Their central contention is that the only cause of action available tothe employee is to bring her claim as a parental leave complaint under the procedurescontained in the Parental Leave and Employment Protection Act 1987 (the ParentalLeave Act). That would in turn mean the only entity with jurisdiction to adjudicate onthe claim is the Employment Relations Authority.[3] The issues raised by the appeal involve the interaction of three statutes:the Human Rights Act 1993, the Parental Leave Act and the Employment RelationsAct 2000.Background[4] Diamond Laser Medispa Taupo Ltd operates a beauty spa and skin clinic inTaupo. The second and third appellants Mr and Ms Blakeney-Williams have sharesin the company. Ms Blakeney-Williams also manages the business and Mr Blakeney-Williams is a director.[5] In January 2016, the company employed the second respondent Ms Doria asa full time beauty therapist. In or about mid November 2016, she advisedMs Blakeney-Williams that she was approximately five weeks pregnant.1 Doria v Diamond Laser Medispa Taupo Ltd [2018] NZHRRT 50 [Tribunal decision].2 Diamond Laser Medispa Taupo Ltd v Human Rights Review Tribunal [2019] NZHC 2809, (2019)17 NZELR 86.Thereafter, according to Ms Doria, her employment conditions changed for the worseand eventually she was forced to resign.[6] Ms Doria complained to the Human Rights Commission, alleging she had beendiscriminated against because of her pregnancy. The Office of Human RightsProceedings subsequently lodged a claim on her behalf in the Tribunal.[7] The statement of claim alleges that the appellants breached the Human RightsAct by subjecting Ms Doria to detrimental treatment and causing her to resign byreason of a prohibited ground of discrimination, namely her pregnancy.[8] The statement of claim then goes on to allege specifically that the appellants:(a) Required Ms Doria to take sick leave when she did not want to.(b) Transferred her existing client bookings to other therapists.(c) Refused to accept future client bookings for her.(d) Pressured her by repeatedly asking for medical evidence of herpregnancy.(e) Removed her as an administrator of the company's Facebook page.(f) Reduced her hours as from January 2017 to accommodate a newtherapist who would be replacing her in the New Year.(g) Required her to commence her parental leave on 29 November 2016against her wishes and without valid reason.(h) Directed her not to enter the company's premises during her pregnancy.(i) Between 29 November 2016 and 4 April 2017 corresponded withMs Doria and her representative (her mother) in an intimidating andinsulting manner, suggesting she was dishonest and refusing her requestto be paid her holiday pay.(j) Left her with no choice but to resign on 4 April 2017.[9] The remedies sought include damages of approximately $15,300 for lostincome as well as damages of $100,000 for humiliation, loss of dignity and injury tofeelings.[10] Following service of the statement of claim, the appellants filed an appearancein the Tribunal under "protest of jurisdiction" and a detailed statement of reply.As regards the substance of the allegations, the appellants strongly deny any unjusttreatment and say there were good reasons for the various steps they took includinghealth and safety concerns about exposing a pregnant employee to chemicals used bybeauty therapists. The appellants will further contend that at all times they acted inaccordance with the Parental Leave Act.[11] Obviously, the rights and wrongs of what took place are not for us to determine.Our sole task is to address the issue of whether the claim is within the jurisdiction ofthe Tribunal.Arguments on appeal[12] The first plank in the appellants' argument is that the allegations made inthe claim bring it within the definition of a parental leave complaint under s 56(1) ofthe Parental Leave Act. That being so, Ms Doria, it is said, was obliged to follow thestatutory procedures for settlement of parental leave complaints contained in that Act.Those procedures provide that if the parties or their representatives are unable toresolve the complaint, it may be referred to the Employment Relations Authority.3[13] The second plank in the argument is that under s 161 of the EmploymentRelations Act, the Employment Relations Authority has exclusive jurisdiction to makedeterminations about employment relationship problems generally. An employment3 Parental Leave and Employment Protection Act 1987 [Parental Leave Act], s 58.relationship problem is defined as including a personal grievance, a dispute and anyother problem relating to or arising out of an employment relationship.4 On any viewof it, Ms Doria's claim concerns a problem relating to or arising out of her employmentrelationship and therefore is within the exclusive jurisdiction of the Authority.[14] Significantly, for present purposes, one of the exceptions to the Authority'sexclusive jurisdiction is that it does not have exclusive jurisdiction in relation topersonal grievances based on a claim that the employee has been discriminated againstin their employment. In such cases, the employee has a choice of procedure.They may, if the grievance is not otherwise resolved, apply to the Authority forresolution of the grievance or they may invoke the complaint procedures underthe Human Rights Act.5[15] This is said to be significant because on the face of it the alleged circumstancesin this case would be capable of amounting to a personal grievance and so allowMs Doria a choice of procedure were it not for a critical provision in the ParentalLeave Act. The critical provision is s 56(4) which states that a parental leavecomplaint is not a personal grievance within the meaning of s 103 of the EmploymentRelations Act.[16] Section 103 of the Employment Relations Act is the section which definesthe types of claim which constitute personal grievances. The definition includesa claim that the employee has been discriminated against in the employee'semployment.[17] It follows, so the argument runs, that because a parental leave complaint is nota personal grievance by definition, it cannot therefore be by definition discrimination,discrimination being a species of personal grievance. In short when it comes toparental leave complaints there is no choice of procedure and thus no room forthe involvement of the Tribunal.4 Employment Relations Act 2000, s 5.5 Section 112; and Human Rights Act 1993, s 79A.[18] And that, the appellants say, makes sense because a breach of the ParentalLeave Act is not about distinguishing or differentiating between a pregnant employeeand a non-pregnant employee.6 The latter does not have any rights or entitlementsunder the Parental Leave Act. The essence of a parental leave complaint is notdiscrimination but a breach of what the Parental Leave Act mandates is to happen.There is no comparator.[19] The appellants further support their interpretation by reference tothe legislative history of the Parental Leave Act which, they say, shows a clearintention to create a distinct cause of action.[20] It appears the second and third appellants consider themselves particularlyprejudiced as a result of the claim being heard in the Tribunal because if the claimwere determined under the Parental Leave Act it would only be the company whocould be sued, not its shareholders or directors.[21] Finally, we note that although the appellants' primary position is that all ofMs Doria's claim is within the definition of a parental leave complaint, their fall-backposition is that even if part of a claim were within the definition, and part not,the complainant would need to split their claim.Analysis[22] The starting point is the Human Rights Act being the legislation which createsthe Tribunal's jurisdiction.[23] Sections 94 and 92B of the Human Rights Act relevantly provide that thefunctions of the Tribunal include adjudicating upon civil proceedings which arise fromcomplaints alleging a breach of pt 2 of the Human Rights Act.[24] Ms Doria's complaint was expressed to be made in reliance on pt 2 which dealswith unlawful discrimination including discrimination in employment matters.The key section is s 22 and, in particular, in this case s 22(1)(c) and (d). Those are the6 Though there are other types of primary carers under s 7(1) of the Parental Leave Act,the appellants' argument is made only in terms of pregnant employees.two sub-sections on which the complaint and subsequent claim are founded.They provide:22 Employment(1) Where an applicant for employment or an employee is qualified forwork of any description, it shall be unlawful for an employer, or anyperson acting or purporting to act on behalf of an employer,—(c) to terminate the employment of the employee, or subjectthe employee to any detriment, in circumstances in whichthe employment of other employees employed on work of thatdescription would not be terminated, or in which otheremployees employed on work of that description would notbe subjected to such detriment; or(d) to retire the employee, or to require or cause the employee toretire or resign,—by reason of any of the prohibited grounds of discrimination.[25] Under s 21(1)(a) the prohibited grounds of discrimination expressly includepregnancy and childbirth.[26] Having regard to those provisions, we consider that at least on the face of itMs Doria's claim clearly falls within s 22 and therefore by virtue of s 92B and 94within the jurisdiction of the Tribunal. The substance of the complaint is that she wassubjected to less favourable treatment than other employees because and only becauseof her pregnancy.[27] We conclude there is nothing in the Human Rights Act itself which wouldpreclude Ms Doria from bringing her claim under that Act. Her claim meetsthe pre-requisites.[28] If the Tribunal's jurisdiction is excluded, the exclusion must therefore be foundelsewhere either in the Parental Leave Act, the Employment Relations Act or both.[29] The Parental Leave Act relevantly sets out minimum entitlements relating toparental leave for employees, the process by which a pregnant employee (or otherprimary carer) applies for parental leave and the process by which an employerresponds.7 There are various notice requirements. One of the stated purposes ofthe Act is to protect the rights of employees during pregnancy and parental leave.8Consistent with that purpose, s 49 prohibits dismissal on the grounds of pregnancy.[30] The three provisions which are central to the appellants' argument arecontained in pt 7 which is headed "Remedies available to employees". According tothe appellants, it is the combined effect of ss 56(1), 56(4) and 57(1) that ousts theTribunal's jurisdiction. Section 56(1) and (4) state:56 Parental leave complaints(1) Where any employee alleges that the employee's employer—(a) is not justified in stating, in the notice given to the employeeunder section 36, that the employee is not entitled to take anyperiod of parental leave or that the employee's position cannotbe kept open; or(b) has, in contravention of section 49(1), terminatedthe employee's employment or given the employee noticeterminating the employee's employment; or(c) has taken other action, or has omitted to do something, thataffects, to the employee's disadvantage, the employee's rightsand benefits in respect of parental leave or a parental leavepayment; or(d) has exercised, without reasonable justification, the powersconferred on the employer by section 14 or section 16,—that allegation shall be a parental leave complaint to which this sectionapplies, and the employee may use, in respect of that parental leavecomplaint, the procedures provided in sections 57 to 67.(4) A parental leave complaint to which this section applies is nota personal grievance within the meaning of section 103 of theEmployment Relations Act 2000.[31] Contrary to the appellants' contention, we are not persuaded that all ofMs Doria's claim falls within the s 56 definition. That was also the view ofthe Tribunal and indeed the main basis on which it dismissed the strike out7 Parental Leave Act, ss 7–12.8 Section 1A(b)application.9 Equally however there is no question in our view that at leasta significant part of the claim does constitute a parental leave complaint as defined.Section 56(1)(d) for example refers to the exercise without reasonable justification ofthe powers conferred on the employer by s 14. Section 14 enables an employer todirect an early commencement date for leave if a pregnant employee is unable toperform her work to the safety of herself or others. And dismissals (which mustinclude constructive dismissals) by reason of pregnancy are prohibited.[32] As will become apparent, it makes no difference to our analysis whether all orpart of the claim was within the definition of a parental leave complaint.[33] We accept that a parental leave complaint is intended to be a distinct cause ofaction. However, that cannot be the end of the inquiry. The fact Ms Doria could havebrought part or indeed all of her claim as a parental leave complaint does notnecessarily equate to the fact it must be the only cause of action available to her.Concurrent or overlapping and even co-extensive causes of action with differentremedies and procedural rules are a reasonably common feature of New Zealand law.[34] In arguing that a parental leave complaint is the only cause of action availableto Ms Doria, the appellants rely on the use of the word "shall" in the concluding phraseof s 56(1) "shall be a parental leave complaint".[35] It is trite law that the word "shall" generally denotes something that ismandatory. However, in context, we consider that "shall" as it appears in s 56(1) issimply deployed for the purposes of definition. In other words, it should be construedas meaning "is". That is reinforced by the remainder of the same sentence which statesthat the employee may use in respect of that parental leave complaint the proceduresprovided in ss 57 to 67. The "may" is clearly intended to be permissive. It is not"must".[36] We acknowledge the possible argument that "may" is used because there is stilla choice — the choice between pursuing a claim and not pursuing any claim at all.The appellants derive support for that interpretation from s 57(1) which states that the9 Tribunal decision, above n 1, at [22]."procedures for the settlement of a parental leave complaint shall be in accordancewith this section and sections 58 to 67 [of the Parental Leave Act]".[37] However, in our view, the provisions can be consistently read as simplymeaning that if an employee elects to bring a parental leave complaint, then that causeof action must be processed under the Parental Leave Act's procedures and notthe personal grievance procedures in the Employment Relations Act. The sections saynothing about claims of discrimination under pt 2 of the Human Rights Act.[38] It is a cardinal principle of statutory interpretation that clear words are requiredbefore the courts will ascribe to Parliament an intention to take away existing rights.10If Parliament had intended to remove the right of an employee to make a complaintunder the Human Rights Act about allegations of discrimination on the grounds ofpregnancy against their employer, it is reasonable to expect it would have said sounambiguously by expressly referring to the Human Rights Act itself and not by theextraordinarily indirect and oblique method of a reference to the personal grievancejurisdiction. Rather than being intended to preclude an employee from pursuing anyalternative cause of action under the Human Rights Act, the much more likelyexplanation for the existence of s 56(4) is that it was designed to avoid confusionregarding procedure.[39] If Parliament had intended the result advocated by the appellants, it would alsobe reasonable to have expected a statement to that effect in the background legislativematerials leading to the enactment of the Parental Leave Act. There is none.[40] We also ask why would Parliament wish to restrict the scope of the reliefavailable to an employee who claims discrimination in circumstances that may alsoamount to a parental leave complaint? The appellants suggest it was becausethe matters which constitute a parental leave complaint are matters best dealt with bythe specialist employment entities and a process whereby there would be rights of10 See for example Cropp v Judicial Committee [2008] NZSC 469, [2008] 3 NZLR 774 (SC) at [26]–[27] citing R v Secretary of State for the Home Department, ex parte Pierson [1998] AC 539 (HL)at 587–590; and R v Secretary of the State for the Home Department, ex parte Simms [2000] 2 AC115 (HL) at 131.appeal to this Court on questions of law.11 However, conversely, it can be said thatthe Tribunal has special expertise in matters pertaining to unlawful discrimination andthat there are rights of appeal from its decision to the High Court and this Court.12[41] We conclude that Grice J was correct when she held that the Tribunal'sjurisdiction in this case is not ousted by any provision of the Parental Leave Act orthe Employment Relations Act. Which body has jurisdiction will be determined bywhich cause of action the employee elects to pursue. That conclusion is consistentwith established principles of statutory interpretation, and international instrumentsunderpinning the Human Rights Act.13 It is also consistent with what case law thereis.14[42] That is not to say that the provisions of the Parental Leave Act will be irrelevantto the determination of Ms Doria's claim in the Tribunal. Far from it. That is becauses 21B of the Human Rights Act states that an act or omission of any person or body isnot unlawful under pt 2 if that act or omission is authorised or required by anotherenactment. As mentioned, the appellants' defence is that the actions they took wereall in accordance with the Parental Leave Act.Outcome[43] The appeal is dismissed.[44] As regards costs, the general principle is that costs should follow the event.However, the appellants argued that were they to lose the appeal, costs should not beawarded against them because Ms Doria is represented by the Office of the HumanRights Proceeding which is also funding her legal costs. The appellants consider theOffice is unlawfully representing Ms Doria because it only has the power to represent11 Employment Relations Act, s 214.12 Human Rights Act, ss 123–124.13 The long title of the Act provides that it is an "Act to consolidate and amend the Race RelationsAct 1971 and the Human Rights Commission Act 1977 and to provide better protection of humanrights in New Zealand in general accordance with United Nations Covenants or Conventions onHuman Rights".14 Blaker v Mainfreight Ltd ERA Auckland AA27/05, 28 January 2005 at 5; Harris v BenchmarkBuilding Supplies Ltd ERA Auckland AA28/02, 14 February 2002 at 1; Shead v TJS Farms LtdNZERA Auckland AA465/10, 29 October 2010 at [9]; Lock v HL Group Ltd [2014] ERA Auckland83 at [42]–[45]; and Lewis v Greene [2004] 2 ERNZ 55 (EmpC) at [141]–[142].complainants in proceedings before the Tribunal and appeals from the Tribunal, notjudicial review proceedings.[45] However, in the absence of an application to disqualify the Director fromrepresenting Ms Doria, we cannot take the matter any further. We were told that asoccurs in the case of litigants who are legally aided, Ms Doria is required to reimbursethe Director any costs awarded in her favour.[46] The appellants are ordered to pay the second respondent costs for a standardappeal on a band A basis together with usual disbursements.Solicitors:Stace Hammond, Hamilton for AppellantsOffice of Human Rights Proceedings, Wellington for Respondent