SNOWDON V RADIO NEW ZEALAND LTD CA CA228/04

SNOWDON V RADIO NEW ZEALAND LTD CA CA228/04 24 February 2005IN THE COURT OF APPEAL OF NEW ZEALAND CA228/04BETWEEN LYNNE FRANCES SNOWDON Applicant AND RADIO NEW ZEALAND LIMITED Respondent Hearing: 14 February 2005 Court: McGrath, William Young and O'Regan JJ Counsel: R A Moodie for Applicant M F Quigg and J Bates for Respondent Judgment: 24 February 2005JUDGMENT OF THE COURT The application for leave to appeal is dismissed (as is the allied application for an interim injunction). The respondent is entitled to costs in the sum of $3,000 together with reasonable disbursements (including travelling and accommodation expenses of counsel, if any) to be agreed, and in default of agreement, to be fixed by the Registrar. REASONS(Given by William Young J)Introduction[1] The applicant, Ms Lynne Snowdon, and the respondent, Radio New Zealand Limited, are involved in personal grievance proceedings which are currently before the Employment Court.[2] The situation between Ms Snowdon and Radio New Zealand came to a head with a performance assessment of Ms Snowdon in October 2002, consequential removal of certain delegated authority and a requirement by Radio New Zealand that she respond to the assessment. [3] Ms Snowdon believes that the events of October 2002 and subsequently are part of a pattern of events which evidence an underlying determination on the part of Radio New Zealand to dispense with her services. The extent to which all of her concerns are properly the subject of the grievance proceedings depends in part on the interpretation to be placed on the letters written by her legal advisers and in part on the application of the 90 day rule. There is certainly scope for debate as to the issues covered by the grievances raised by Ms Snowdon. [4] Ms Snowdon took annual leave in December 2002 and then sick leave. From around May 2003 she has been endeavouring to return to work. Her attempts to do so have been unsuccessful in the face of resistance from Radio New Zealand. Since May 2003, two particular problems have arisen which have given rise to significant delays. The first was associated with attempts by Radio New Zealand to obtain detailed information (including, if necessary, by medical examination of Ms Snowdon by its own doctor) as to Ms Snowdon's health. The second, which is more material for present purposes, relates to the desire of Radio New Zealand to have a meeting with Ms Snowdon to discuss with her the question whether the employment relationship with her has completely broken down. Ms Snowdon is understandably concerned that the proposed discussion could be simply a precursor to a dismissal. [5] To be more particular, in August last year, Radio New Zealand's solicitors wrote to Ms Snowdon's solicitors directing her to attend such a meeting to be held in the offices of Radio New Zealand's solicitors. [6] Ms Snowdon sought an order from Judge Shaw in the Employment Court restraining Radio New Zealand from directing her to attend the proposed meeting and, more generally, from requiring her to attend any other meetings or provide any responses connected directly or indirectly with proceedings before the Court.Judge Shaw declined the application and Ms Snowdon now wishes to challenge that decision. [7] There have been some procedural difficulties with the proceedings in this Court but the position is now reasonably straightforward: Ms Snowdon seeks leave to appeal and, if leave to appeal is granted, an interim injunction preserving the position (ie preventing any meeting) pending determination of the appeal. [8] We were told that the grievance proceedings in the Employment Court are a number of months, and perhaps a year, away from being heard. There is an unresolved preliminary issue as to the appropriateness of extensive demands for disclosure made on behalf of Ms Snowdon.The Employment Court decision[9] In the Employment Court Judge Shaw accepted that she had jurisdiction to make the order sought but declined in her discretion to make the order. [10] In reaching this decision: (a) She expressed the view that the subject matter of the proposed decision was "separate" from the personal grievances before the Court; and (b) She saw no unfairness in relation to what was proposed. Relevant to this conclusion was the availability of later independent scrutiny before the Employment Relations Authority and/or the Employment Court. She did not see prior compliance with disclosure requirements insisted on by Ms Snowdon as a pre-requisite to the proposed meeting.The argument for Ms Snowdon[11] In the course of his argument for Ms Snowdon, Mr Moodie maintained that the first of the Judge's conclusion was wrong. From Ms Snowdon's point of view,the proposed meeting is simply part of the same general pattern of events of which she is complaining. He suggested that Judge Shaw had taken too narrow and literal a view of what was already on the table in relation to the existing grievance proceedings. His broad position was that the conduct of Ms Snowdon which Radio New Zealand wishes to examine occurred within the course of the existing personal grievance proceedings and is thus not capable of providing a basis for dismissal. In this respect he relied on the decision of the Employment Court in Burns v Chief Executive of the Inland Revenue Department [2001] ERNZ 753. [12] The concern of Ms Snowdon is that if interim relief is not granted, she will be dismissed and this will result in a cessation of her income, which, according to Mr Moodie, would mean that she would not be in a position to fund continuation of the litigation.The argument for Radio New Zealand[13] Mr Quigg for Radio New Zealand maintained that the subject matter of the proposed meeting was distinct from that covered by the personal grievance proceedings. He also argued that in any event the balance of convenience is against the granting of an interim injunction. [14] His concern is that if Radio New Zealand cannot force the issue on the question whether there has been a breakdown in the employment relationship, it is or may be prejudiced in relation to Ms Snowdon staying on the payroll perhaps artificially. [15] He suggested that there is no evidence that she would be unable to continue litigation if she were to be dismissed. In any event, Ms Snowdon could seek interim relief (in the form of interim reinstatement in the Employment Court) and if her position as to that were seen as meritorious, such relief would presumably be granted.Evaluation[16] We accept that the proposed appeal is arguable. In particular, we accept that it is open to argument that the proposed subject matter of the meeting lies within the scope of the personal grievance proceedings. Given the decision of the Full Court of the Employment Court in Burns v The Chief Executive of the Inland Revenue Department it is also arguable that the issues which Radio New Zealand wishes to discuss with Ms Snowdon could not properly be relied on by Radio New Zealand as a basis for terminating her employment. We add, however, that we are not to be taken as endorsing the correctness of everything which was said in Burns. [17] Under s 214(3) of the Employment Relations Act, this Court may grant leave to appeal if the question of law involved in the proposed appeal is one that "by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision". [18] We see this case as turning very much on the discretion whether to grant leave to appeal and associated issues as to balance of convenience in relation to the proposed interim injunction. [19] Radio New Zealand has been heavy-handed in directing Ms Snowdon to attend a meeting at its solicitors' offices given that the parties are presently involved in litigation in the Employment Court. On the other hand, it was perfectly open to Ms Snowdon to suggest other and less oppressive ways in which she could provide responses to any issues raised by Radio New Zealand (perhaps in the form of correspondence between solicitors). Ms Snowdon has taken the high ground position that the topics in respect of which Radio New Zealand wishes to consult with her about are out of bounds. A perhaps more sensible approach would have been for her to agree to provide responses to issues raised by Radio New Zealand (perhaps through correspondence) but to reserve her position as to the appropriateness of the process and as to the entitlement of Radio New Zealand to rely on it when considering whether or not to terminate her contract of employment.[20] We have no desire to allow the resources of this Court to become tied up in what we suspect may be tactical manoeuvring on both sides. An allied consideration is that we are reluctant to intervene in procedural issues in the Employment Court. [21] The issues of law raised by Ms Snowdon relating to the scope of the existing grievance proceedings have a one-off character. They are no doubt important to her but do not have any obvious broader significance. The correctness or otherwise of the approach taken in Burns does raise potentially important issues, but such issues would be best determined in a context where there are factual findings. [22] Finally, we are not persuaded that there is any relevant prejudice to Ms Snowdon if we decline to hear the appeal. If Radio New Zealand is gearing up to dismiss her and does so, she will have the opportunity to test that dismissal (presumably in the Employment Court) and could apply for an interim order for reinstatement and we see, in any event, no evidential basis for the contention that such dismissal would mean that she would not able to fund continuing litigation. [23] So we have concluded that the case does not warrant a grant of leave under s 214(3).Result[24] For those reasons the application for leave to appeal is dismissed as is the allied application for an interim injunction. Radio New Zealand is entitled to costs in the sum of $3,000 together with reasonable disbursements (including travelling and accommodation expenses of counsel, if any) to be agreed and, in default of agreement, fixed by the Registrar.Solicitors: Davis O'Sullivan, Wellington for Applicant Quigg Partners, Wellington for Respondent