NCR (NZ) CORPORATION LIMITED V BLOWES CA CA186/04

NCR (NZ) CORPORATION LIMITED V BLOWES CA CA186/04 23 September 2005IN THE COURT OF APPEAL OF NEW ZEALAND CA186/04UNDER the Employment Contracts Act 1991 IN THE MATTER OF an appeal against a decision of the Employment Court BETWEEN NCR (NZ) CORPORATION LIMITED Appellant AND EDWARD ALAN BLOWES Respondent Hearing: 24 August 2005 Court: Robertson, Williams and Wild JJ Counsel: P T Kiely and D J France for Appellant P A Morten for Respondent Judgment: 23 September 2005 at 10amJUDGMENT OF THE COURT A The appeal is allowed in part. B The award of $15,000 for non-economic loss made by the Employment Court is set aside, and an award of $7,000 substituted. C There will be no order as to costs.____________________________________________________________________REASONS(Given by Wild J)Introduction[1] This is an appeal against a judgment of Judge Colgan given in the Employment Court at Auckland on 22 July 2004. [2] The appeal is on three grounds. First, that the Employment Court erred in law in making two findings without an evidentiary basis. Secondly, the Employment Court was in error in interpreting the redundancy provisions of the respondent's employment agreement. Thirdly, that the Employment Court's award to the respondent of $15,000 under s 40(1)(c)(i) of the Employment Contracts Act 1991 (the Act) was manifestly excessive, and thus wrong in law. The appellant argues that there was no evidence to found any award or, alternatively, that any evidence there might have been would justify an award of no more than $7,000. [3] These three grounds of appeal are constrained by s 135 of the Act which provides:135 Appeals to Court of Appeal on question of law(1) Where any party to any proceedings under this Act is dissatisfied with any decision of the Court (other than a decision on the construction of any individual employment contract or collective employment contract) as being erroneous in point of law, that party may appeal to the Court of Appeal Factual background[4] There is no dispute that Judge Colgan accurately chronicled the main events. The respondent, Mr Blowes, was employed by the appellant from April 1976 until September 1986. After being "head hunted" back by the appellant, he was again in its employment from August 1993 until 25 September 1998. [5] In 1997 the appellant assigned Mr Blowes from Wellington to a new position in Melbourne to lead the Asia Pacific Early Development Team – Card Services ofNCR Australia Pty Limited. We will refer to this Australian company and to other parts of the NCR international conglomerate without distinction as "NCR". Mr Blowes was considered a "loaned expatriate" from the appellant. This assignment involved his leading pilot projects developing chip card technology for two of the large Australian banks. We will call it the "Mondex" project. Mr Blowes moved to Australia with the expectation, but no assurance, that the Mondex project would last two to three years. [6] In May 1998 Mr Blowes was advised that NCR was abandoning the Mondex project. He remained in Melbourne attending to the wind-down of the project until, on 25 August 1998, he was given notice of termination of his employment, effective 25 September 1998. During that period, there were communications between the parties about Mr Blowes' employment, including the options available to him. [7] Mr Blowes left the appellant's employment on 25 September 1998. About a month later, he secured work in Melbourne with SCIL, where the work was similar and which came with a remuneration package of comparable value. [8] Mr Blowes gave the appellant formal notice of personal grievance in June 1999. In June 2001 he filed with the Employment Tribunal in Auckland a formal claim for personal grievance coupled with an action to recover monies he claimed the appellant owed him. [9] That claim was heard by the Tribunal on 1 and 2 May 2002. In its decision delivered on 17 September 2002, the Tribunal dismissed Mr Blowes' personal grievance and awarded the appellant costs. [10] Mr Blowes appealed to the Employment Court on 11 October 2002. That appeal was heard on 29 April and 13 June 2003, with Judge Colgan delivering his decision on 22 July 2004. [11] This appeal was filed on 18 August 2004.[12] In the course of argument, Mr Morten emphasised the unfortunate fact that it was almost seven years to the day since Mr Blowes' employment was formally terminated. In the employment area, delays of that magnitude before final resolution of a dispute are unacceptable.First ground on appeal: no evidentiary basis for Employment Court's findings[13] On the basis that they were conclusions that no reasonable Court could have reached, the appellant challenged two findings of the Employment Court: (a) That the respondent's prior service with the appellant from 1975 to 1987 would be recognised for the purpose of calculating redundancy compensation for the respondent's period of employment with the appellant from 1993 to 1998. (b) That the respondent was not treated fairly and reasonably throughout the redundancy process. [14] We do not accept that either of those findings lacked a proper evidentiary basis. As to the first, Mr Blowes gave evidence before the Tribunal of discussions he had had with the appellant's management at the time he was re-employed and said:7. After several discussions with Louis, his manager Jim Good, and the then Country Manager Craig Cameron, I agreed to rejoin on the basis that I was not "starting over" and that my previous service would be given the appropriate recognition. The most immediate impact of this was to commence with four weeks annual leave, the standard at that time being three weeks.[15] This evidence was not challenged before the Tribunal. On 8 July 1997, before taking up his Melbourne assignment, the respondent exchanged e-mails with Ms Moran, the New Zealand Human Resources Manager of the appellant. Mr Blowes wrote:Vicki When we last met, I mentioned my concern over the fact that although agreement had been reached when I was re-employed to consider my service as continuous, nobody involved at the time (except for me!) is still here. The continuous service definition seems to impact on three areas:ƒ Annual leave – this is not an issue as I have taken four weeks since rejoiningƒ Long service leave – this will come up within the foreseeable futureƒ Superannuation vesting – I have no intention of leaving, but I would like to see this issue formalised Are there any other areas affected by long/continuous service? Perhaps including a comment or clause in my belated contract is one way of tidying this up?[16] Ms Moran responded on 15 September: I've searched back through your personnel file, and spoken to those who were involved in your recruitment, and unfortunately no-one can recall having undertaken a commitment to honour your continuity of service with NCR. While we obviously wish to honour the commitment you say was made, unfortunately we are unable to do so without evidence of this. Is there anything you have in writing which indicates our commitment to do this? [17] Mr Blowes did not reply, or at least any response was not in evidence before the Tribunal. Thus, the Tribunal had Mr Blowes' uncontroverted evidence that he had accepted re-employment with the appellant in 1993 on the basis that his service would be regarded as continuous for employment purposes. When questioning Mr Blowes before the Tribunal, Mr Kiely gained his acceptance that redundancy was not specifically addressed in 1993 and that there was no "redundancy agreement" between the parties. Mr Blowes made the understandable point that in 1993 neither party focused on redundancy. [18] A final piece of evidence was that Mr Blowes received from NCR his 15 year long service pin during August 1998. That was about three months after NCR had advised him that it was abandoning the Mondex project, and was just a few days before Mr Blowes was given formal notice of termination on 25 August 1998. [19] These items of evidence were the basis for Judge Colgan's finding:For redundancy compensation purposes, his service was all service with NCR.[20] In McKimmie v Thomson [1962] NZLR 963 at 965 the (then) Supreme Court adopted the House of Lords' decision in Edwards (Inspector of Taxes) v Bairstow[1956] AC 14. Since then, it has been New Zealand law that finding a fact without supporting evidence, or contrary to the available evidence, constitutes error of law by the fact finder. In the employment law area, this Court confirmed that in Talbot v Air New Zealand Ltd [1996] 1 NZLR 414. Earlier this year, the Supreme Court reaffirmed that position in Bryson v Three Foot Six Ltd [2005] NZSC 34. As we have said, we consider there was an evidentiary basis for the Judge's finding that Mr Blowes had a contractual entitlement to have his redundancy calculated on the basis of all his service with NCR. [21] Mr Kiely also submitted that Judge Colgan had impermissibly implied into, or added to, Mr Blowes' employment agreement, a redundancy entitlement. He referred to this Court's proscription on doing that, in Aoraki Corporation v McGavin[1998] 1 ERNZ 601, at 619-620. We do not accept that the Employment Court erred in that way. Judge Colgan found that the redundancy entitlement to which he gave effect was in Mr Blowes' employment agreement with NCR; he did not somehow add such an entitlement to the agreement. The orally negotiated term together with the written terms comprised Mr Blowes' employment agreement with NCR. [22] The second of the Judge's findings of fact impugned, is that Mr Blowes was not treated fairly and reasonably throughout the redundancy process. Mr Kiely initially challenged, as incorrect in law, the basis upon which Judge Colgan had assessed NCR's treatment of Mr Blowes. This challenge was based on the following passages in the judgment:[56] I have concluded, contrary to the Tribunal's decision, that this was a case in which, following the judgment of the Court of Appeal in Aoraki Corporation, NCR was obliged to treat Mr Blowes in a fair and sensitive way when his redundancy was in prospect after 20 May 1998 as a practical manifestation of the implied contractual obligations of confidence, trust and fair dealing. His circumstances were such that NCR should have considered and promptly offered Mr Blowes counselling, career and financial advice, related financial support, and more considered opportunities for redeployment within the company before falling back on the stark contractual alternatives of a return to his previous Wellington role ordismissal with redundancy compensation. That was particularly so in view of NCR's own acknowledged acceptance of the inappropriateness of a return to the Wellington position both for it and Mr Blowes. I accept Mr Morten's categorisations of disadvantageous treatment of Mr Blowes that I have summarised between paragraphs [40] and [47] inclusive of this judgment. [57] In these circumstances I have concluded that NCR did not act in the way that the law expected it to following the announcement of its decision of disbandment of Mr Blowes's team and his prospective redundancy on 20 May 1998. Those failures led to Mr Blowes suffering disadvantage in his employment and NCR has not justified its acts and omissions that brought about this disadvantage. Indeed, given the clear "paper trail" made by the written communications between the parties over this period, supplemented by Mr Blowes's largely uncontradicted evidence, it is difficult to see how NCR could have justified its relevant dealings with the appellant. It follows that, contrary to the Tribunal's conclusion, Mr Blowes has a personal grievance for unjustified disadvantage in employment from 20 May 1998 to the cessation of his job on 25 September 1998. For the reasons already set out it is unnecessary to consider whether the dismissal may also have been unjustified by reason of the same factors.[23] Mr Kiely responsibly withdrew this submission when it was pointed out that an obligation to implement a redundancy decision in a "fair and sensitive way" is referred to in Aoraki (at 618), and that at 619 this Court's judgment also states: As well, fair treatment may call for counselling, career and financial advice and retraining and related financial support. No doubt other considerations will be relevant in particular cases.The issue on this second aspect was thus confined to whether there was an evidentiary basis for Judge Colgan's finding, applying the Aoraki test, that Mr Blowes was not treated fairly and reasonably. There was sufficient evidence for the Judge's finding. [24] The Tribunal, and thus the Employment Court, had a large amount of evidence about NCR's treatment of Mr Blowes. We consider the main points of that evidence are these: (a) After "head hunting" him back to its employment, NCR encouraged Mr Blowes to apply for the Melbourne assignment. NCR then further encouraged Mr Blowes to move to Melbourne (and he did, before Christmas 1997) as a sign of good faith, before he had concluded a contract covering the assignment (eventually signed on 20 February/3March 1998). NCR accepted it was unusual for a senior employee to be willing to move without a concluded agreement. (b) NCR raised the estimated duration of the assignment from 12 to 24-36 months, as a consequence of Mr Blowes' representations, although throughout reserving "the right to terminate this assignment or your employment at any time". The duration was of concern to Mr Blowes because relocating to Australia was a major step for him and his wife. (c) On 20 May 1998, Mr Blowes was advised in a conference telephone call that NCR was abandoning the Mondex project. Although he had been told immediately beforehand to expect the conference call, there had been no prior consultation or warning, the announcement coming as "a complete shock". Mr Blowes had to take the conference call in a car park outside a restaurant where he was having dinner with his family. It was far from the ideal situation in which to tell Mr Blowes that the job he was doing was to go soon. (d) Exacerbating factors were these: in anticipation of two to three years in Melbourne, Mr Blowes' wife had closed the public relations business in Wellington she had built up over seven years; the couple had leased their Wellington home; their furniture had arrived in Melbourne just two months earlier. (e) Although Mr Blowes was a "loaned expatriate" from the appellant, he heard nothing, directly, from that company before his position was terminated with effect from 25 September 1998. (f) Following the 20 May conference call, Mr Blowes heard nothing further and, on 27 May, e-mailed his boss Ms Peta Matthews (London based) and members of NCR's global Human Resources ("HR") team, seeking clarification of his position, including his future employment options with NCR. In that e-mail he outlined what he described as his own "extraordinary and difficult situation", and hisbelief that his was "the only ex-patriot position affected by this announcement". (g) A reply came only on 5 June. It was from Ms Susan Demeter, described as "Director, Human Resources, Payment Solutions". Mr Blowes' evidence was that Ms Demeter was Canada based. In that e-mail Ms Demeter advised that Ms Peta Matthews would meet with Mr Blowes while she was in Australia from 8-12 June. She also advised that she would be working with Mr John Glover to address Mr Blowes' situation. Mr Glover headed NCR's Australian HR organisation. (h) Ms Matthews did meet with Mr Blowes on 8 June, but his evidence was that the discussion was confined to transition issues affecting NCR and its Mondex project customers. It did not feature his personal position, beyond Ms Matthews advising him that Ms Demeter was the right person for him to deal with, because she headed the HR support to NCR's Payment Solutions Division, of which the Mondex project team headed by Ms Matthews was part. (i) On 17 June, Mr Blowes acknowledged Ms Demeter's 5 June e-mail and, that same day, received a further e-mail from Ms Demeter in which she advised that she would call Mr Blowes after a discussion with Mr Glover, which she intended to have within the next 24 hours. Ms Demeter also advised:I spoke to Peta Matthews today, and she spelled out very clearly what your concerns are, and how upset you and your family are. I will do everything I can to make sure that NCR treats you fairly as we progress forward in the upcoming weeks.(j) Mr Blowes' evidence was that he heard nothing further from either Ms Matthews nor Mr Glover, and that he could not get any sense out of anyone in NCR for nearly nine weeks. During this period, therewas certainly e-mail traffic between various people in NCR's global HR network, as to what was to be done for Mr Blowes. (k) On 22 June Mr Madeley (General Manager NCR Financial Systems Group, Pacific) e-mailed Mr Blowes. He referred to his brief conversation the previous week when Mr Blowes was feeling unwell, about his career interests and what roles NCR might have available for him "going forward". He asked Mr Blowes to ring him. (l) Mr Blowes e-mailed Mr Madeley on 24 June. In that e-mail he complained that it was five weeks since the 20 May conference call and his only contact with HR had been with Ms Demeter "and a cursory note from Doreen Chui". He referred to his expatriate status and said "I need SPA or Asiapac HR to make contact with me to formalise the situation and outline the options for reassignment or otherwise". He said that anything Mr Madeley could do to expedite this would be appreciated. Mr Madeley responded on 25 June saying that he would follow up with HR, but pointed out that Mr Blowes needed to advise what were his interests, career goals and skill sets. (m) In his evidence, Mr Blowes said that on 29 June, in a telephone conversation, Mr Madeley told him that he saw no value for either party in Mr Blowes returning to Wellington. That view was echoed in evidence before the Tribunal by Mr Bradley, General Manager of the appellant. (n) On 3 July, in response to a request the previous evening from Ms Matthews, Mr Blowes sent her a report on progress with his situation. He reported on a meeting he had had the previous day with Mr Madeley. (o) On 6 July Mr Madeley sent an e-mail to various people in NCR's HR network, copying it to Ms Matthews. He reported:To all interested or involved in with Eddie Blowes I have spoken to Eddie in the past on the phone and now in person regarding his current role and future at NCR. Eddie is very concerned that he has not been contacted with a new job role offer. He is also upset (based on the fact that he has just settled in Melbourne and the role has gone) that we have moved slowly to address this issue and assist resolve it. I discussed with Eddie his career plans and needs going forward. In summary: He does not want to move to another city (other than relocating back to Wellington). He does not want to go back to his old role in NCR Wellington. He would like a role that is interesting and new to him (but not to the company, due to the risk of it not lasting) Due to the disruption and changes he would like an early decision in order that his wife can determine her work plans. With this in mind I have explored a few job opportunities here in SPA that might have been of interest to him. 1. A role in outsourcing (high risk h/c not approved) 2. A return as Account Director in New Zealand (old role) 3. Possibly being Account Director at NAB (role note vacant/I cannot afford an ex pat in the role) As a result none of the opportunities in SPA were of interest or relevant. I must now ask HR to work on any other opportunities or alternatives. I would like Eddie, as the Mondex GST representative to stay in Melbourne for the next 2-3 months to bring the current activities in ANZ Mondex to a logical close with the local team. Sally please coordinate this and work with other area/regions to determine what options exist for Eddie going forward. Please communicate to Eddie what these options are ASAP. Tks Louis(p) On 6 July Mr Robert Cardinaux (head of HR in London) e-mailed Ms Matthews, Ms Demeter, Mr Madeley, Mr Skogstad and others in NCR's HR network in the following terms:Hi all Peta, thanks for forwarding this; Louis, thanks for the summary. I think the HR lack of response has been driven by some of the confusion around who Eddie belongs to andwhat his future might be. This seems clarified to me now. Eddie is an FSG Card GST associate, whose exit costs will be borne by the Card GST; there seem to be no suitable appointments for him going forward (Barring a role in NZ – Tony?? – I assume not). Given the above, I suggest that the following take place: We confirm that there are no other roles in APR suitable for Eddie (Tony Grandidge). We figure out who from HR should represent NCR in face to face discussion with Eddie (Peter Skogstad?) We agree with and confirm to him in writing the following 1. straightforward redundancy terms (based on NZ practice), owing to closure of Card Services GST and lack of suitable positions to remain with NCR. 2. Transition of 2-3 months (we need an EXACT date – Louis Madeley??) 3. Payments mechanics, when, how, where 4. Repatriation costs to be covered by NCR (standard policy, or as committed in offer) 5. Job hunting (outplacement) services (standard policy) Terms will be defined by WFO HR working with Doreen, FSG to approve or resolve any differences that may arise. As there are some precedents afoot in NZ, I am happy to be guided in this by region HR, but it may be smart to take legal counsel regarding Eddie's circumstances, what was stated to him when he took the position, etc, to be sure there are no icebergs we do not know about. Please confirm that this is agreeable to all, and lets get started going through these three steps one by one. Thanks R(q) On 14 July Mr Blowes' solicitors, Nicola Mathers & John Harkness in Wellington, wrote to Mr Bradley, the managing director of the appellant, based in Auckland. The letter outlined Mr Blowes' situation, detailing some of the e-mail communications. Itcomplained that he had been treated very badly and alleged "clear and serious breaches of his employment contract". It asked Mr Bradley to accept the letter as notice of Mr Blowes' claim of a personal grievance, but at the same time stated his wish not to become embroiled in proceedings of that nature. It urged urgent action by Mr Bradley to address Mr Blowes' employment situation. That letter was acknowledged on 20 July by Mr Kiely's firm, which advised that it acted for "NCR Australia Pty Limited". (r) On 17 July Mr Blowes met with Mr Skogstad and Ms Brigid Gibson, both with HR Australia. A note of that meeting was produced in both the Tribunal and Employment Court. Mr Skogstad handed Mr Blowes a letter offering him the alternatives of a return to his previous position in Wellington or redundancy. The latter alternative was framed thus:2. For you to elect to take a redundancy package. This is calculated according to NCR New Zealand's redundancy policy of four weeks pay for the first year of service and one week's pay for each completed six months of service thereafter.(s) Before the Tribunal, Mr Skogstad said he would have needed, but never got, authority from the business unit (i.e. London) to settle with Mr Blowes. (t) On 14 August Mr Blowes spoke to a Mr Littlejohn of NCR's Financial Systems Group HR in London. Mr Littlejohn took the view that the matter had to be settled locally, in other words, by Mr Skogstad. (u) Ms Matthews left NCR in about mid-July. Mr Skogstad was unable to identify who in NCR had authority after that to negotiate and settle with the respondent. (v) Correspondence between the parties' New Zealand solicitors continued through August into September. Broadly, the appellant'ssolicitors took the view that there was no dispute, no grounds for any personal grievance, but a clear case of redundancy. Mr Blowes' solicitors maintained their view that he had a personal grievance, and attempted to address the basis on which that grievance might be settled. (w) On 25 August the appellant's solicitors confirmed to Mr Blowes' solicitors, that the appellant was giving Mr Blowes one month's notice of termination of his employment, that notice effective 25 September 1998. (x) On 23 September Mr Blowes e-mailed Mr Cardinaux. He attached a copy of a fax his New Zealand solicitors were sending Mr Kiely's firm that day complaining:Notwithstanding your letters to us, there has been no communication with Mr Blowes by the Human Resources section of NCR Australia Pty Limited. In that e-mail Mr Blowes stated that "as I leave NCR in 48 hours it seems unlikely that any progress will be made, especially considering events to date". He expressed his disappointment to be leaving under those circumstances, after 15 years with NCR. (y) At about the same time on 23 September, Ms Gibson e-mailed Mr Blowes in the following terms:Eddie As your final day with NCR is this Friday and you have made no attempt to contact me concerning your repatriation to Wellington, despite two requests to your lawyer (24 August 1998 and 3 September 1998), I would like to confirm some details with you: As per your International Assignment Contract of 20 February 1998, you will need to contact Sharon Bartik in Expatriate Services US to arrange for shipment of your belongings. Her number is 937-445-8193. NCR will only pay for the removal of your goods if the movement is arranged through Sharon.You will be eligible to remain in your house for 30 days (from Friday 25 th September) prior to departure. You will also be eligible for 30 days post arrival living expenses when you arrive back in Wellington. As per your contract, you may also retain your rental car for two weeks from 25th September and may rent a car for two weeks on arrival in Wellington. Please contact me if there is anything in the terms and conditions of your contract regarding repatriation which is not clear. Attached is a copy of your Clearance Forms which must be completed prior to your departure. You should work with Sally Knox of HR (x8555) if you have any questions on this. We will organise to have an FSG manager in Melbourne available on Friday to sign these forms where appropriate. As per our normal leaving procedures, provided these forms are received by Friday afternoon, your payment will be made in NZ on Monday. Please call me on x8666 if you have any questions. Regards Brigid(z) Early on 24 September (3.13am) Mr Cardinaux e-mailed Mr Blowes, explaining why he had not done so earlier. He confirmed his view "that local discussions to bring your separation to a close are the appropriate means to follow", and encouraged Mr Blowes to contact Mr Skogstad for further details. (aa) Later on 24 September Mr Skogstad e-mailed Mr Blowes:Eddie I am very concerned about the accusations you make about the lack of communication from the Australian HR organisation. When I first attempted to contact you it took a week of voicemail messages before we were able to meet. You might recall that Brigid Gibson and I met with you and despite your promise to get back to us with your decision you did not have the courtesy to contact either Brigid or myself. In fact I am still waiting to hear from you. We understand that you decided to communicate with the company through your lawyer but I would have expected at a minimum that you would have let us know that this wasyour decision. I am not prepared to spend time, as I did last time, in trying to make contact with you when you apparently believe that communication should be one way from us to you with no reciprocal communication from you. Incidentally, John Glover who worked with you on your expatriate assignment to Australia is also very disappointed that you have made no attempt to contact him as he also could have assisted you. Having expressed my concern it would be helpful for NCR if you could ask the colleagues you have within the company, who believe that it is necessary to engage external lawyers, to contact Peter Sawaqed in our legal department to let him know why this is the case. To this date there have been a small number of employees who have decided to do this and to the best of my knowledge in most cases they have tried to work the issues through with the company before engaging external legal advice. We obviously know the situation with your colleagues who have left the company and can share this information with Peter. By now you will have received Brigid's response to the latest letter we received from your lawyer. Incidentally in two letters to your lawyer dated 23rd August and 3 rdSeptember it was requested that you make contact with Brigid Gibson and she has not heard anything from you. We have a large HR organisation and you can contact any of us to help you if for some reason you have a concern in working with any particular HR employee. Anyone on this team could have helped you initially rather than you having to contact HR in London in the first instance as you seem to have done. Please call me (02 9964 8211) if there is anything I can do to help you.(bb) Later on 24 September there was a telephone conversation between Mr Skogstad and Mr Blowes. We do not have the benefit of the transcript of that conversation, which Mr Blowes (unbeknown to Mr Skogstad at the time), recorded. Mr Morten was in his submissions to us critical of Mr Skogstad for spending most of that conversation: (i) Criticising Mr Blowes for dealing with HR London rather than Australia, although Ms Matthews had told him to do that. Mr Morten pointed out that, cross-examined before the Tribunal, both Mr Skogstad and Ms Gibson had accepted that Mr Blowes could not fairly be criticised for dealing with HRLondon, both because he had been instructed to and because London serviced his business unit. (ii) Complaining that Mr Blowes had put the matter in his solicitor's hands, rather than dealing with HR Australia, suggesting that Australia would have done everything it could to help Mr Blowes, when it had not in fact done so. (iii)Telling Mr Blowes what the proper procedure for him would have been, without endeavouring to resolve the dispute between the parties. (cc) There was a final exchange of e-mails between Mr Skogstad and Mr Blowes on the latter's last day of employment, 25 September. Mr Skogstad's e-mail stated:Eddie Thank you for your message. I think this confirms my point that there was really no expectation that SPA HR would be communicating with you since you were working through the BU. I agree with you contacting Sharon Bartik and we will also let her know of the need to get relocation quotes. Brigid Gibson and Sally Knox will also work with you to ensure that your repatriation is a smooth process. Following completion of the normal clearance processes, today Friday 25 th September in Melbourne, we will make your redundancy payment in New Zealand on Monday 28 thSeptember. Please let me know if you have any questions.(dd) Mr Blowes responded to Mr Skogstad by e-mail, expressing his puzzlement at Mr Skogstad's disappointment that Mr Blowes had not contacted Sydney HR about his situation. Mr Blowes expressed "the need to re-state the sequence of events to you", which he then did, setting out the main events as he saw them from 20 May to 22 July 1998. The last four paragraphs of this e-mail were:Wednesday 22 July On my return to Melbourne from the FSG Hunter Valley session, I received a call from my solicitor who was had received a fax from NCR's solicitors, stating that all future correspondence on this issue was to be directed to them. You will understand therefore, why I did not make direct contact with you after this instruction. As to why I didn't contact you or Brigid Gibson or John Glover prior to this, not unreasonably, I put my faith in the people who, along with my manager in London, were directly charged with managing the process for the disbanding of the Card Solutions GST. In other words, I didn't want to duplicate a process I kept being assured was in hand. Peter, as I promised during our call yesterday, I will telephone Sharon Bartik in the United States today regarding moving from the company-leased house and pass on to my lawyer the key points of the telephone conversation you and I had yesterday.[25] This evidence in its totality provided a sufficient basis for Judge Colgan's finding (in [57] of his decision: we have set it out at [22]), that the appellant did not treat Mr Blowes in the fair and sensitive way the circumstances required. We view the following as the main aspects supporting the Judge's finding: (a) The insensitive way in which it was conveyed to Mr Blowes on 20 May that the job he was doing was soon to go. (b) The lack of follow up: nothing really until Mr Blowes' meeting with Mr Skogstad and Ms Gibson on 17 July. (c) The confusion within NCR's HR organisation as to who was to deal with Mr Blowes' employment situation. London thought it should be Australia. Australia thought it should be London. Canada seemed to be involved as well. (d) Mr Skogstad, particularly in his e-mail and then on the telephone on 24 September, criticising Mr Blowes for contacting HR London, when Mr Blowes' boss (Ms Matthews) had told him to do that, and whenMr Skogstad in evidence was constrained to accept that it was HR London which supported the business unit Mr Blowes was working for. (e) Generally, NCR, whilst through various of its officers communicating with Mr Blowes on many occasions, not really doing anything tangible for him. There was a lot of talk, and not much, if any, action. We find it difficult indeed to accept that a corporation the size of NCR, if it had put its mind to it, could not have made available to Mr Blowes options beyond the two offered to him by Mr Skogstad in his 17 July letter. Significant in this respect is that NCR appeared to consider that Mr Blowes had the onus to resolve the situation. There is, in Mr Morten's cross-examination of Mr Skogstad before the Tribunal, the following passage:MORTEN: But you never got authority to try and settle them. PETER SKOGSTAD: Well we had no proposal or proposition that the company could address. MORTEN: And that was Eddie's fault for not putting a proposal to you and that justified you not getting authority to settle the issues? PETER SKOGSTAD: No it's nobody's fault. We were responding to the situation that developed.(f) A lack of appreciation on NCR's part of Mr Blowes' particular situation. He claimed to be the only "expatriate" affected by the abandonment of the Mondex project. There is the following exchange in Mr Morten's cross-examination of Ms Gibson before the Tribunal:MORTEN: So here we have Eddie Blowes with a fairly bumpy experience on relocation in the first place. And a pretty hideous experience learning this news by telephone on 20 May with his wife who's given up her job and their perched in Melbourne. Do you think that this was a time when NCR as an employer should have been particularly caring and supportive? BRIGID GIBSON: I think we're always particularly caring and supportive. We were not aware of the totaldistress that's described by Ms Thompson yesterday. We were not made aware of the issues she had with her relocation, so once again this is all with hindsight. MORTEN: Yes. But having heard all of that stuff, having heard them describe their situation and their vulnerability do you think the company could have done better for them? BRIGID GIBSON: Unfortunately there was no position and I think that was the bottom line, but that was explored over a very long period. He was notified in May, he worked through with the company until September. There were numerous conversations, there was correspondence concerning roles. [26] To summarise, we are satisfied the evidence supported Judge Colgan's finding that, for redundancy purposes, Mr Blowes' service with the appellant was his entire 15 years' service, despite the break in it. We are satisfied also that there was a proper evidentiary basis for Judge Colgan's finding that the appellant did not treat Mr Blowes fairly and reasonably during the redundancy process, between May and September 1998.Second ground on appeal: error in interpreting the redundancy provisions of the employment agreement[27] In the event that we found against the appellant on the first aspect of its first ground of appeal, Mr Kiely accepted that it would be unnecessary for us to consider the second ground. [28] Had it been necessary for us to consider this ground, we would have dismissed it. We agree with the Judge's approach to the interpretation of the redundancy provision in the respondent's employment agreement, which is clause 9 of the appellant's standard terms and conditions of employment for its employees. [29] Mr Kiely submitted that the Judge's approach to interpretation would create practical problems in applying other of those standard terms, in particular clause 1 (Annual Leave) and clause 4 (Long Service Leave). We do not agree. For example, clause 4 applies only to specific periods of continuous service with the appellant.Having stated that at the outset, the clause need then only, and does then only, refer to "service".Third ground on appeal: $15,000 compensation for unjustified disadvantage erroneous in law[30] The submission on this ground was that there was no evidence to support any award, or, alternatively, that any evidence there was justified an award of no more than $7,000. Our decision on the second aspect of the first ground of appeal disposes of the "no evidence" submission. [31] Both Judge Colgan in his decision, and counsel in their submissions to us, referred to this Court's decision in Telecom New Zealand Ltd v Nutter [2004] 1 ERNZ 315. There, William Young J delivering the Court's decision, said this:[84] An award of $20,000 for an "almost brutal" dismissal was upheld inTelecom South v Post Office Union [1992] 1 ERNZ 711; [1992] 1 NZLR 275 (CA). However, an award of $10,000 has been seen as being on the high side in Air NZ Ltd v Johnston [1992] 1 ERNZ 700; [1992] 1 NZLR 159 (CA) at p169. As late as 1999, awards in excess of $10,000 were made in only 10 percent of cases, see NZ Fasteners Stainless Ltd v Thwaites [2000] 1 ERNZ 739; [2000] 2 NZLR 565 (CA) at pp 750; p575-576. [85] We note that some generalised guidance as to the levels of awards for non-economic loss might be called for. But we are at something of a disadvantage in this case in that we have not had the sort of survey of the authorities which would permit us to give confidently such guidance in this judgment. We are hearing an appeal and a cross-appeal confined to points of law from a Court of specialised jurisdiction and this is also an inhibiting factor. It is sufficient for the purposes of this case to note that awards of compensation for non-economic loss are not necessarily to be confined to $10,000. Indeed, in applying the older cases, some allowance must be made for subsequent inflation. Further, while we are conscious of, and indeed emphasise, the need for moderation and the appropriateness of reasonable consistency, any award must address the actual consequences for the employee of the dismissal, a point fairly made by Chief Judge Goddard inBallylaw Holdings Ltd v Henderson [2003] 1 ERNZ 313 in paras 80 and 81.[32] In Nutter, this Court declined to disturb Judge Shaw's award of $5,000 for non-economic loss. In doing so, the Court made two observations. First, it described the Judge's apparent start point of $10,000 (there was a 50% allowance for contribution) as "a meagre award given the humiliating circumstances of, and grounds for, the dismissal and the consequent loss by Mr Nutter of what seems tohave been his social network within Telecom and elsewhere". Secondly, the Court expressed its discomfort that the Judge had not explained her reasons for adopting a starting point of $10,000. [33] In Thwaites, this Court did not interfere with the Employment Court's award of $10,000 as compensation for distress and humiliation, though noting that awards in excess of $10,000 were only made in 10% of cases. Telecom South and Air NZ, both referred to in the passage from Nutter we have cited above, were both decided in 1992. The fact that these two decisions were made 13 years ago needs to be borne in mind when considering the comments in them about the quantum of awards of compensation for non-economic loss. [34] Mr Kiely emphasised that in cases of genuine redundancy such as this, compensation can only relate to the manner of termination and not to the shock and injury to feelings at the loss of the job. We accept this, but so also did Judge Colgan who expressly put to one side Mr Blowes' "inevitable disappointments arising from the cancellation of a new and ground breaking assignment suffered by its team leader". [35] Mr Kiely submitted that there was no evidence that Mr Blowes had suffered stress during the process, he "finally" seeking medical help sometime after he had left the appellant and started his new employment with SCIL. Mr Kiely noted that the Employment Tribunal and Court had no medical evidence, and suggested that the fact that the respondent took three years to file his proceeding in the Tribunal further undermined his claim that he had suffered severe stress. While those points are well made, there are counter-points. As Mr Morten submitted, the fact that it was only after the termination of his employment on 25 September 1998 that Mr Blowes sought medical help, demonstrates that the stress he had suffered was on-going. Further, the alternatives Mr Skogstad had put to the appellant on 17 July (the latter is set out at (q) above), were both expressly stated to be "conditional upon satisfactory completion of your current assignment in Melbourne, Australia with the ANZ Mondex project expected to be completed on or about 30 September 1998". So Mr Blowes was expected by NCR to keep performing, stress or no stress, if he wanted his redundancy paid.[36] Mr Kiely argued that, were the Employment Court to consider an award of compensation, other factors were also relevant. One was that Mr Blowes suffered no loss of income, because he received a redundancy payment of over $64,000 and obtained employment at an equivalent level of remuneration approximately one month after his employment with the appellant ended. We agree. But, again, Judge Colgan recorded that Mr Blowes had been paid $64,684.14 redundancy plus $42,152.90, being three months salary in lieu of notice. The Judge observed:There was little if any loss of income suffered by the (respondent).And, later in his decision at [58]:Fortunately, the nature and extent of (his injuries) were probably mitigated by Mr Blowes obtaining alternative employment relatively quickly although this did not immediately or completely alleviate the physical and psychological suffering he experienced.[37] Mr Kiely also submitted that Mr Blowes was offered redeployment during the period prior to the termination of his employment, but declined that offer. That is correct. However, as we recorded at [24](l)(m), both Messrs Madeley and Bradley of NCR shared Mr Blowes' own view that returning to his previous position in Wellington would be unwise. To put it colloquially, he had "been there, done that" and was seeking a new challenge elsewhere in NCR's extensive international business. [38] As Judge Colgan noted, compensatory awards for non-economic loss are in part matters of impression and discretion within recognised parameters. Those are the parameters this Court referred to in Nutter, which Judge Colgan carefully noted. [39] Our view is that the $15,000 award for non-economic loss made by Judge Colgan is, in the circumstances of this case, so excessive as to be wrong in law. [40] The circumstances of unjustified dismissals and unjustified disadvantage in employment are infinitely variable. But the $20,000 award upheld by this Court in 1992 in Telecom South v Post Office Union must have been at or near the upper endof the permissible range. Referring to Telecom South's dismissal of Mr Devlin, its General Manager for Human Resources, Richardson J said:No attempt was made then or later to explain or justify the dismissal which was carried out in a high handed manner and could only be characterised as an arrogant abuse of power by Telecom South.Casey J, in his judgment, added:It is not contested that (Mr Devlin's) dismissal was unjustified, and it took place in a way which caused him acute humiliation and distress at the time and continuing injury to his feelings. At the age of 55, and having relinquished his independent consultancy business to take that position, his prospects of obtaining any other similarly paid employment are remote.Mr Devlin was summarily dismissed, without any prior notice. No reasons were ever given for his dismissal despite repeated requests by Mr Devlin. The dismissal came just two days before Mr Devlin was due to leave on an overseas trip, partly on Telecom South's business. There was no suggestion of redundancy, and no shortcomings in Mr Devlin's work had been alleged. [41] Allowance for inflation during the 13 years which have elapsed since that award (the Labour Court had made its award on 18 May 1990) must be made. The CPI, which stood at 861 for the quarter ended June 1990 (the point nearest to the Labour Court's award), had increased to 1156 by the end of the June 2005 quarter, the most recent available. That increase applied to $20,000 yields $26,852. [42] Judge Colgan, at [49] of his decision, appeared to accept counsel's submission "that the range of awards in similar cases for distress compensation appears to be between $10,000 and $25,000 depending on the severity of the unfairness". The upper end of that range may need to be lifted to $27,000 to allow for inflation. [43] We do not consider the circumstances of Mr Blowes' case justify an award sitting between halfway and two-thirds of the way up the permissible range. What happened to Mr Blowes was not, in terms of its consequences, half as serious as what happened to Mr Devlin in Telecom South, let alone comparatively more serious than that.[44] Mr Blowes was not humiliated. He was not abruptly or brutally dismissed. He was dealt with insensitively. His particular predicament, as the only expatriate affected by the abandonment of the Mondex project, was not recognised by NCR or, if it was, was not appropriately dealt with by NCR. In so holding, we refer to the facts that, having been persuaded to re-locate from New Zealand to Melbourne for an estimated (but not guaranteed) two to three year assignment, just five months into that assignment Mr Blowes was told that his job was shortly to go. NCR then required Mr Blowes to continue working in the "wind-down" phase of the assignment for a further four months, and the payment to him of redundancy was conditioned on his continuing to perform. The stress, eventually necessitating medical intervention, that these circumstances caused Mr Blowes ought to have been but was not appreciated by NCR, and was thus not dealt with by it in an appropriately fair and sensitive manner. The distress the situation caused to Mr Blowes' spouse, who had sold her New Zealand business to accompany Mr Blowes to Melbourne, was given no thought. Indeed, it is clear from the evidence that NCR was unaware of that distress. It ought to have been aware, and should also have been alive to the impact his spouse's distress would have on Mr Blowes. We accept all of that, but we do not consider that it justifies the award of $15,000 made by Judge Colgan, when compared with the amount and circumstances of other awards. [45] The decision of the six-person majority of the Full Bench of seven Court of Appeal Judges in Aoraki Corporation Ltd v McGavin [1998] 1 ERNZ 601 further reinforces our view that Judge Colgan's $15,000 award for non-economic loss was considerably too high. Mr McGavin had worked in senior management positions for Aoraki for about 11 years. At a meeting on Tuesday 27 June 1995 he was advised by one of Aoraki's directors that his position was redundant as from that Friday, 30 June. This meeting occurred one day before 94 more junior employees were told that they also were redundant as from 30 June. [46] The majority did not accept Mr McGavin's evidence that he was simply told "you are out of here", but did accept that the advice of redundancy was abrupt, with an absence or inadequacy of prior warning and a failure to give reasons, although the redundancy was a genuine one. These factors were exacerbated by a lack of counselling. There was a general offer of counselling to all 96 redundant employees,but the Court took the view that Mr McGavin's particular situation required Aoraki to take further steps. The majority concluded:Weighing these matters as best we can, we have concluded that compensation for humiliation and distress for the manner in which the proper dismissal for redundancy was implemented could not be more than $15,000 and, in the special circumstances of this case, should be fixed at that figure.[47] We find some more general support for our view that an award of $15,000 is altogether too high for this case in the Employment Relations Service statistics which Mr Kiely made available to us. For the 2004 calendar year, those statistics show that the Employment Court and Employment Relations Authority made awards for non-economic loss of $10,000 or over in only 10% of cases, and awards of $15,000 or over in only 2.5% of cases. For both figures, the percentages include cases of unjustified dismissal as well as unjustified disadvantage. We cannot accept that the circumstances of this case put it in the top 2.5% of awards for non-economic loss in cases which include unjustified dismissal. [48] Taking into account the evidence as we have summarised it in [25], and particularly the main aspects we drew together in [26], our view is that the highest award justifiable is, as Mr Kiely submitted, $7,000. Accordingly, we quash the award of $15,000 made by the Employment Court and substitute an award of $7,000.Result[49] Neither of the first two grounds of appeal has succeeded, and we dismiss them. [50] The appeal is allowed on the third ground. The award of $15,000 for non- economic loss made by the Employment Court is set aside and an award of $7,000 substituted.[51] As each party has had partial success on this appeal, we make no order as to costs in this Court.Solicitors: Kiely Thompson Caisley, Auckland for the Appellant Harkness & Peterson, Wellington for the Respondent