SAENA COMPANY LTD v HUNMO KANG [2023] NZCA 50

SAENA COMPANY LTD v HUNMO KANG [2023] NZCA 50 [10 March 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA492/2022[2023] NZCA 50BETWEEN SAENA COMPANY LTDApplicantAND HUNMO KANGRespondentCourt: French and Mallon JJCounsel: M Y Kim for ApplicantS Kang for RespondentJudgment:(On the papers)10 March 2023 at 2.30 pmJUDGMENT OF THE COURTA The application for leave to appeal is declined.B The interlocutory application for a stay is dismissed.C The applicant must pay the respondent's costs for a standard applicationon a band A basis and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Mallon J)Applications[1] The applicant company (Saena) applies for leave to appeal an EmploymentCourt decision1 and for a stay of the proceeding and execution of judgment pendingthe appeal.2Background facts[2] Saena owns and operates a sushi restaurant in Whangārei. Gyu-ill Hwang isSaena's sole director. He works in the restaurant with his wife, Oksil Weon, who isthe head chef.[3] The Employment Court proceeding concerned the circumstances in which therespondent, Hunmo Kang's, employment with Saena came to an end. Mr Kang hadstarted working at the restaurant from 16 September 2019. His main roles weremaking donburi dishes and deep frying. His wife, Yoojin Chung, began working atthe restaurant a few weeks later.[4] At about 11 am, on 21 October 2019, there was an incident involvingMs Chung which angered Ms Weon. She confronted Ms Chung, thumped a table witha kitchen implement and made an angry comment about Ms Chung and Mr Kangpairing up against her. Ms Chung took off her apron and cap and left the restaurant toremove herself from the situation. Mr Kang said he would follow her soon but wastold by Mr Hwang, in forceful terms, to leave which Mr Kang then did.[5] At about 4.19 pm that same day, Mr Kang sent a text message to the cell phonenumber that he had as Saena's contact number from the job advertisement to which hehad earlier responded in obtaining work at Saena. In that text he said he had left, ashe had been told to leave immediately, and asked what was wanted for tomorrow. Hereceived a text reply at 4.21 pm that said "Let's go our separate ways. I appreciate forwhat you have done so far". That was followed by a further text at 4.24 pm that said"I think it is an expression of intention to quit here that you said to your wife she leave1 Kang v Saena Company Limited [2022] EmpC 151 [Employment Court decision].2 Employment Relations Act 2000, s 214(1); and Court of Appeal (Civil) Rules 2005, r 12(3).first and that you would follow her soon when your wife said she would quit".Mr Kang responded at 5.02 pm to the effect that he had been misheard.[6] Mr Kang and Ms Chung then began searching online as to what to do when anemployee was dismissed. That same evening, he noticed two job advertisementsposted by Saena. The first was posted at 7.03 pm for a full-time "Sushi and Donburi"job. The second was posted at 10.08 pm for two kitchen staff for a job described as"Kitchen and Roll-Maker".[7] Thereafter there were communications between Mr Kang and Mr Hwang inwhich Mr Kang negotiated over a draft employment agreement under which Mr Kangwould return to work. The negotiations were ultimately unsuccessful.[8] The Employment Relations Authority held that Mr Kang was not unjustifiablydismissed nor disadvantaged in his employment.3 It declined to impose a penalty forSaena's failure to provide Mr Kang a written employment agreement at the outset ofhis employment but imposed penalties of $2,000 for failures to maintain adequatewage and time records, and holiday and leave records.4[9] Mr Kang challenged the findings to the Employment Court. The Court foundthat Mr Kang's dismissal grievance was established.5 It further found his disadvantagegrievance was not established.6 Saena was ordered to pay Mr Kang $3,351.06 for lostwages and $20,000 compensation for humiliation, loss of dignity and injury tofeelings.7 No penalty was imposed for Saena's breach in not providing a writtenemployment agreement from the outset of Mr Kang's employment.83 Kang v Saena Company Ltd [2021] NZERA 196 at [26] and [32].4 At [36] and [69]; Employment Relations Act, s 130; and Holidays Act 2003, ss 75 and 81.5 Employment Court decision, above n 1, at [158] and [184].6 At [165] and [184].7 At [185].8 At [181].Leave grounds[10] A party dissatisfied with a decision of the Employment Court as being wrongin law may appeal with leave to this Court.9 This Court may grant leave if it is satisfiedthat the application raises a question of law of general or public importance.10[11] Saena seeks leave to appeal on the following questions, which it asserts arequestions of law:(a) whether the Employment Court erred in applying s 142ZA of theEmployment Relations Act 2000 (ERA) in the grievance jurisdiction;(b) whether the Employment Court erred in taking into account materiallyrelevant information in applying s 142Z of the ERA;(c) whether the Employment Court erred in law by failing to consider thesocial and cultural framework and the language used by the parties inassessing the credibility of witnesses; and(d) whether the Employment Court applied an objective test and properlyconsidered all the evidence in determining whether a dismissal tookplace.Assessment[12] The first ground is a question of law. It concerns the scope of s 142ZA of theERA. That section provides for when the conduct of a person on behalf of a companyis to be attributed to the company. The ground relates to the text messages sent to MrKang at 4.21 and 4.24 pm on 21 October 2019. Those texts were sent by Ms Weon,rather than Mr Hwang. The Employment Court found nevertheless that it wasreasonable for Mr Kang to believe that they were sent with the authority of Saena.11Saena seeks to argue on appeal that s 142ZA does not apply to the grievancejurisdiction.9 Employment Relations Act, s 214(1).10 Section 214(3).11 Employment Court decision, above n 1, at [128].[13] We accept that the correct scope of s 142ZA could constitute a question ofgeneral or public importance if there were any doubt about that scope. However, weare satisfied that there is no doubt about its application to the grievance jurisdiction.The section provides when "conduct engaged in on behalf of a body corporate" is tobe treated "for the purposes of this Act" as having been engaged in also by the bodycorporate.12 On its terms it is a provision that applies to the grievance jurisdictionunder Part 9 and is not confined to Part 9A where it is located. This ground thereforedoes not give rise to a question of general or public importance.[14] The second ground concerns the Employment Court's application of the test ins 142Z. That section is about attributing to another a person's state of mind. It is saidthat the Judge failed to take into account that Mr Kang attempted to direct all hiscommunications to Mr Hwang and wrongly found acquiescence by Mr Hwang ofMs Weon's actions in attributing Ms Weon's conduct to Mr Hwang. This ground doesnot raise a question of general or public importance. Nor is it arguable on the facts asfound by the Judge. He found that Ms Weon had the authority not only to hire but tofire and Mr Hwang did nothing initially upon learning about her conduct.13 Thosefindings were open to the Judge.[15] The third ground does not raise a question of law. It relates to the Judge'sassessment of the evidence. In any event, it is not arguable. The Judge was cognisantof the Korean context but assessed that, in the circumstances, Mr Kang reasonablyunderstood he was being dismissed and that this was confirmed by the text messages.14[16] The fourth ground concerns the test for dismissal. Saena contends that it isnecessary to establish that Mr Hwang intended to repudiate the contract of service.This ground is not arguable and does not raise a question of general or publicimportance. The question is whether it was reasonable for somebody in Mr Kang'sposition to have considered his employment had been terminated. That is the test theJudge applied.1512 Employment Relations Act, s 142ZA(1).13 Employment Court decision, above n 1, at [129] and [132].14 At [123], [133] and [140].15 At [16].[17] Leave to appeal is therefore declined.Stay application[18] The stay application was sought on the basis that it was said the appeal wouldbecome nugatory if a stay was not granted. As leave to appeal is declined, a staypending the appeal is unnecessary. The application is accordingly dismissed.Result[19] The application for leave to appeal the decision of the Employment Court isdeclined.[20] The interlocutory application for a stay of the Employment Court proceedingand execution of judgment is dismissed.[21] The applicant must pay the respondent's costs for a standard application on aband A basis and usual disbursements.Solicitors:MK Law, Auckland for ApplicantFairbrother Family Law, Napier for Respondent