IDEA SERVICES LIMITED V CLARK CA602/2014 [2014] NZCA 97

IDEA SERVICES LIMITED V CLARK CA602/2014 [2014] NZCA 97 [28 March 2014]IN THE COURT OF APPEAL OF NEW ZEALANDCA602/2013[2014] NZCA 97BETWEEN IDEA SERVICES LIMITEDApplicantAND WILLIAM STUART CLARKRespondentHearing: 17 March 2014Court: Stevens, White and Miller JJCounsel: P A McBride and G G Ballara for ApplicantP B Churchman QC and D J Pine for RespondentJudgment: 28 March 2014 at 11.30 amJUDGMENT OF THE COURTA The application for leave to appeal on a question of law is dismissed.B The applicant must pay the respondent costs for a standard application on a band A basis and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Stevens J)Introduction[1] The applicant, Idea Services Ltd, has applied for leave to appeal against a decision of Chief Judge Colgan delivered in the Employment Court on 16 August 2013.1 The applicant is a registered charity which provides support for people with1 Clark v Idea Services Ltd [2013] NZEmpC 155 [Employment Court judgment].intellectual disabilities. Until his dismissal in April 2009, Mr Clark was employed by the applicant as its Southland Area Manager.[2] The Employment Relations Authority found that Mr Clark's dismissal wasjustified.2 Mr Clark then challenged that decision in the Employment Court, pursuant to s 179 of the Employment Relations Act 2000 (the Act). Chief Judge Colgan found that Mr Clark's dismissal was unjustified and awarded totalcompensation of $15,500.3Challenge on appeal[3] The challenge was heard in the Employment Court over three days on 27-29 June 2011. The judgment was not delivered until 16 August 2013, nearly 26 months after the hearing. In the lead up to delivery of the judgment, counsel for the applicant made various approaches to the Registry of the Employment Court, to no avail. In mid-2013, a complaint was made by the applicant to the Judicial Conduct Commissioner. Following a response by the Chief Judge to the Judicial Conduct Commissioner on 1 August 2013, the judgment was issued some two weekslater. We address the Chief Judge's explanation for the delay later in this judgment.The proposed questions of law[4] Although the applicant initially identified five proposed questions of law, at the hearing Mr McBride submitted that in essence they boiled down to three.[5] The first proposed question was whether the significant delay of 26 months in issuing the judgment affected its key findings, thus constituting a significant error of process. This point was advanced on the basis of a question of law, rather than a challenge to the jurisdiction of the Employment Court.4[6] The second proposed question concerned the application of the test for justification of dismissal under s 103A of the Act. The question was whether, on an2 Clark v Idea Services Ltd ERA Christchurch CA112/10, 7 May 2010.3 Employment Court judgment, above n1, at [144] and [153]–[154].4 That would have required reliance on ss 193 and 213 of the Act. The scope of such a challenge is limited, as discussed by this Court in Parker v Silver Fern Farms Ltd [2011] ERNZ 419 at [43] and Moodie v Employment Court [2012] ERNZ 201 at [15].objective basis, the applicant's actions as employer were fair and reasonable in allthe circumstances.[7] The third proposed question concerned the approach of the Employment Court to remedies and reimbursement under ss 123 and 128 of the Act. In particular the question was whether the applicant had established any loss following the dismissal.Applicant's submissions[8] In support of the three proposed questions, Mr McBride emphasised the extreme nature of the delay and the concern that, following such lengthy delay an employer with an onus of having to justify a dismissal was at real risk of prejudice.[9] Counsel referred to various parts of the judgment which, he submitted, demonstrated that the delay had impacted on the decision-making.5 It was said that certain aspects of the evidence had been overlooked and there were inconsistencies in the findings, illustrating that the delays had led to errors of law. On this latter aspect counsel cited a recent decision of the Privy Council considering the test forwhether the Judge's delay had caused an impact on the proper disposal of the challenge.6Discussion[10] The Chief Judge said the delay was brought about "because of additional pressures on the Court's already stretched judicial resources following the Christchurch earthquakes".7 This explanation was also advanced to the Judicial Conduct Commissioner, although the Chief Judge did acknowledge that the delaywas "unacceptable" and expressed his regret. We consider that the delay of26 months is wholly unsatisfactory.5 Examples included an absence of recorded notes of the cross-examination and the apparent overlooking of memoranda filed by the parties on the question of proof of loss.6 Ramnarine v Ramnarine [2013] UKPC 27, [2014] 1 FLR 594.7 Employment Court judgment, above n 1, at [3].[11] But what we must address is the impact of such delay. In Ramnarine, thePrivy Council said the impact of delay was a "difficult issue".8 On this point theBoard went on to apply a test for the existence of "excessive delay" derived from anearlier Privy Council decision in Cobham v Frett as follows:9 a fair case must be shown for believing that the judgment contains errors that are probably, or even possibly, attributable to the delay. The appellate court must be satisfied that the judgment is not safe and that to allow it to stand would be unfair to the complainant.[12] We consider that this is a helpful test to apply in cases such as the present. However it must be emphasised in the context of employment cases that the applicant is still required to establish that the delay potentially gave rise to an error of law that meets the test in s 214 of the Act. The Court has a discretion to grant leave if it is of the opinion that a question of law is one that by reason of its general or public importance or for any other reason, ought to be submitted to this Court.[13] We observe that delays of considerable length in the delivery of Employment Court judgments are not isolated. In Moodie v Employment Court, this Court stated:10We regret to say that this is not the first time that a decision of the Employment Court has been contested in this Court in circumstances where the judgment was the subject of significant delay. This Court has previously considered whether delay in delivery of a decision would give rise to a question of law for the purposes of s 214 of the Employment Relations Act (dealing with leave to appeal). In New Zealand Cards Ltd v Ramsay, a case involving a 19-month delay in delivery of the judgment, this Court said the delay was a matter of concern but did not necessarily give rise to a question of law.11 In Bagchi v Chief Executive of the Inland Revenue Department, a case involving a 33-month delay, this Court noted that there was authority for the proposition that delays of such length could provide a basis for an appellate court to take a closer look at, for example, decisions about the credibility of witnesses.12 But the matter was not pursued in that case and the Court did not take the point further.8 At [21].9 Cobham v Frett [2001] 1 WLR 1775 (PC) at 1783-1784 (emphasis added).10 Moodie v Employment Court [2012] ERNZ 201 at [32].11 New Zealand Cards Ltd v Ramsay [2012] NZCA 285 at [10].12 Bagchi v Chief Executive of the Inland Revenue Department [2008] NZCA 544, [2008] ERNZ580 at [15], citing Goose v Wilson Sanford & Co [1998] EWCA Civ 245 at [112] and [113] andCobham v Frett, above n 9, at 1783–1784.[14] It may be that delay in itself could be so egregious as to create a question of law, namely, whether it should be presumed, having regard to the issues and circumstances of the case, that the decision-maker can no longer do justice between the parties.[15] While the delay in delivery of the judgment in this case was totally unacceptable and very close to meeting this test, having regard to the issues and circumstances of this case, we do not consider that the delay was such that the Chief Judge could not do justice between the parties. First, the absence of recorded notes of the cross-examination is not determinative. The Chief Judge said in the judgment that he had taken his own notes at the hearing and had re-read and reconsidered these, as well as other material.13 Second, this was not a case where the issues for determination turned on credibility findings. Third, the issues raised in the memoranda filed on the question of proof of loss can be said to have been taken into account in a general way (as discussed below) on the topic of compensation and remedies.[16] Neither do we consider that the applicant has demonstrated the existence of any other question of law that meets the test in s 214(3) of the Act. With respect to the second proposed question of law, there is nothing in this case that warrants aquestion of law dealing with the employer's grounds for justification of the dismissalunder s 103A of the Act. This is because the employment relationship between the parties established a prescriptive set of policies and procedures in written form. The Employment Court had access to those written materials and applied them when dealing with the question of whether the dismissal of Mr Clark was justifiable. The issues involved were factual in nature and did not turn on findings of credibility.[17] With respect to the third proposed question, the applicant seeks to raise the issue of remedies and reimbursement. We are satisfied that any questions involving these matters were purely factual. The Chief Judge was alive to the legal issues and awarded Mr Clark what can only be seen as justifiably modest compensation for lost remuneration of $12,500.14 In addition he acknowledged Mr Clark's significant13 Employment Court judgment, above n 1, at [3].14 Employment Court judgment, above n 1, at [153].contribution to the circumstances leading to his dismissal and fixed compensation under s 123(1)(c)(i) of the Act at $3,000.15 He said that in normal circumstances the amount would have been higher.[18] We are therefore satisfied that the applicant has been unable to demonstrate a question of law involved in the proposed appeal that would by reason of its general or public importance or for any other reason, ought to be submitted to this Court.Result and costs[19] The application for leave to appeal on a question of law is dismissed. The applicant must pay the respondent costs for a standard application on a band A basis and usual disbursements.Solicitors:McBride Davenport James, Wellington for AppellantAWS Legal, Invercargill for Respondent15 At [154].