FOSTER v WILSON [2022] NZHC 1955

FOSTER v WILSON [2022] NZHC 1955 [10 August 2022]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECIV-2022-463-18[2022] NZHC 1955BETWEEN SIOBHAN FOSTERPlaintiffAND ANDREW WILSON(ROTORUA ECONOMICDEVELOPMENT)First DefendantGRAHAM BROWNRIGG(ROTORUA ECONOMICDEVELOPMENT)Second DefendantHearing: 13 July 2022Appearances: Plaintiff is self-representedFraser Wood for the First and Second DefendantsJudgment: 10 August 2022JUDGMENT OF ASSOCIATE JUDGE C B TAYLORThis judgment was delivered by me on 10 August 2022 at 3:00pmpursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Tompkins Wake (Fraser Wood), Rotorua, for the First and Second DefendantsIntroduction[1] Ms Siobhán Foster was employed as a travel consultant by Rotorua EconomicDevelopment Ltd (RED), a Council-controlled organisation. She began full-timeemployment in this role on 30 March 2017. Her employment was terminated inJanuary 2022 for non-compliance with RED's COVID-19 vaccination policy.[2] Ms Foster claims against Mr Andrew Wilson and Mr Graham Brownrigg foralleged breaches of the New Zealand Bill of Rights Act 1990, breach of contract,discrimination, coercion, threats, trespass and general unlawfulness. Mr Wilson is theCEO of RED; Mr Brownrigg is the Executive Manager of Visitor Services andExperience. Mr Brownrigg is also Ms Foster's former team leader.[3] The defendants say they have been erroneously joined as parties, and that thecorrect defendant should be RED. They also say their dealings with Ms Foster arisesolely in the employment context. They have therefore filed a protest to jurisdictionchallenging this Court's jurisdiction to hear and determine the proceeding, on the basisthe issues fall within the Employment Relations Authority's (the Authority) exclusivejurisdiction.Background[4] In late 2021, as part of its obligations under the Health and Safety at Work Act2015, and responding to the COVID-19 pandemic, RED formulated a COVID-19response policy. After consultation and feedback, RED determined its employeeswould be safest at work if they were fully vaccinated. The RED board thereforeapproved a mandatory vaccination policy on 10 December 2021.[5] Ms Foster objected to the policy. She refused to disclose her medical recordsand her vaccination status. RED therefore assumed Ms Foster had not beenvaccinated. On 15 December 2021, Mr Wilson sent Ms Foster a letter advising shewould be stood down on full pay until she received her first vaccination, or unless shereceived both vaccinations by Monday 17 January 2022.[6] As Ms Foster had confirmed she did not intend to be vaccinated and was notgoing to comply with the policy, RED's leadership team convened on 17 January 2022to consider whether alternative arrangements could accommodate her. The teamdetermined there were none, given the nature of RED's work and Ms Foster's rolewithin the organisation. Accordingly, Mr Wilson gave Ms Foster four weeks' noticeof the termination of her employment.[7] Ms Foster did not receive any vaccinations by 15 February 2022, and heremployment thereby ended. She now claims against the defendants for various allegedinfringements relating to the termination of her employment.Ms Foster's claim[8] Ms Foster's statement of claim is not clearly pleaded. It appears to seekdamages for breach of contract, discrimination, coercion, threats, financial hardship,trespass and unlawfulness. It also refers to various provisions of the New Zealand Billof Rights Act 1990, including ss 10 (the right not to be subjected to medical orscientific experimentation without that person's consent), 11 (the right to refuse toundergo any medical treatment), 13 (the right to freedom of thought, conscience, andreligion) and 15 (the right to manifest religion and belief). It seeks compensation inthe amount of $2,311,255.04, comprising Ms Foster's yearly salary multiplied by the16 years she has left until retirement (inflation adjusted) and various expenses inpreparing her case.1Ms Foster's affidavits[9] Ms Foster has made two affidavits in support of her claim. In the first, dated5 April 2022, she says she feels discriminated against, coerced and bullied into gettingvaccinated by Messrs Wilson and Brownrigg. She says was deprived of her incomeafter she exercised her free choice to refuse an invasive medical procedure, and thather termination was discriminatory. She says her employment contract contained noinformation requiring her to undergo any medical procedure of any kind, or to besubject to any vaccination of any kind to continue her employment.21 Statement of claim dated 1 April 2022.2 Affidavit of Siobhán Foster dated 5 April 2022.[10] In her second affidavit, Ms Foster says she has an absolute right to choose notto be included in a medical experiment. She says the COVID-19 Pfizer vaccine'seffectiveness is still unproven.3Defendants' protest to jurisdiction[11] The defendants protest the Court's jurisdiction to determine Ms Foster'sclaims:4(a) The first and second defendants, Andrew Wilson and GrahamBrownrigg respectively, both employees of Rotorua EconomicDevelopment Ltd ("RED") appear under protest to object to thejurisdiction of the court to hear and determine this proceeding.(b) The first and second defendants' objection is based on the followinggrounds:(i) At all material times the plaintiff was an employee of RED.(ii) On 17 January 2022 the plaintiff was given written notice oftermination of her employment for non-compliance withRED's Covid Vaccination Policy ("the Policy").(iii) The subject matter of the proceeding, as currently pleaded,concerns the introduction and implementation of the Policy,and the subsequent termination of the plaintiff's employment.This is an employment relationship problem.(iv) Section 161 of the Employment Relations Act 2000 gives theEmployment Relations Authority exclusive jurisdiction tomake determinations about employment relationshipproblems.(v) The High Court has no jurisdiction over employmentrelationship problems and the correct forum is theEmployment Relations Authority.Mr Wilson's affidavit[12] Mr Wilson has made an affidavit in support of the protest to jurisdiction. Hedeposes he believes Ms Foster has incorrectly issued proceedings against him in hispersonal capacity rather than naming RED as a party. He says all his dealings withMs Foster have been in his capacity as CEO of RED, and in Ms Foster's capacity asan employee of RED. He says that because Ms Foster's complaint relates to the3 Affidavit of Siobhán Foster dated 9 May 2022.4 Appearance under protest to jurisdiction dated 10 May 2022.process undertaken in implementing RED's COVID-19 vaccination policy, he believesthis is an employment relationship problem within the Authority's exclusivejurisdiction. He says Ms Foster's claims of breach of contract, discrimination,coercion, threats, financial hardship, trespass and unlawfulness all concern theintroduction and implementation of RED's vaccination policy. Those claims, alongwith Ms Foster's termination, all relate to her employment with RED.5Mr Brownrigg's affidavit[13] Mr Brownrigg has also made an affidavit in support of the protest tojurisdiction. He too says he believes he has been incorrectly joined as a party. Hedeposes all his dealings with Ms Foster have been as her team leader, and all claimsshe has made arise out of the employment relationship. He says he has had no dealingswith the plaintiff in his personal capacity.6Ms Foster's reply memorandum[14] Ms Foster has filed a reply memorandum in response to the defendants'affidavits. She says she raised concerns with RED about the vaccine's safety andeffectiveness as early as October 2021. She says in November 2021 she agreed toreceive the vaccine, conditional on proof in writing of its safety and effectiveness. Shesays she re-stated her concerns over the following months but was not giveninformation adequate to meet her conditions. She says RED's vaccine policy is not anagreement or an amendment to her employment contract and she therefore cannot havebreached it. She says there is no legislation that states the policy could override heremployment contract. And she says she believes RED has no power or authority overher to control what she chooses to put in her body.7Defendants' submissions[15] Mr Fraser Wood, for the defendants, says Ms Foster's pleadings and evidenceshow the claim arises entirely within the employment context. He says the substance5 Affidavit of Andrew David Wilson dated 15 June 2022 at [1]–[5] and [29].6 Affidavit of Graham Neil Brownrigg dated 15 June 2022 at [1]–[4].7 Memorandum in response to affidavits of Andrew Wilson and Graham Brownrigg dated 20 June2022.of the claim concerns the introduction and implementation of RED's COVID-19vaccination policy and the subsequent termination of Ms Foster's employment fornon-compliance with that policy. He says the Court has no jurisdiction to hear anddetermine the claim, and, in any event, the defendants have erroneously been joinedas parties. There is no legal basis upon which they could be liable in their individualcapacities, and the claim is therefore an abuse of process.8[16] Mr Wood submits Ms Foster's claim is in essence a personal grievance forunjustified dismissal, falling squarely within s 161(e) of the Employment RelationsAct 2000 — and, by extension, the Authority's exclusive jurisdiction. Even were thisnot so, the claim unavoidably arises in the course of Ms Foster's employmentrelationship with RED, and in a work context. Mr Wood says it is clear thatNew Zealand Bill of Rights Act issues are not, in any event, outside the Authority'spurview. The claim must be dismissed for want of jurisdiction.9[17] Even if the Court did have jurisdiction to determine Ms Foster's claims,Mr Wood submits, that would not rehabilitate the fact the defendants have erroneouslybeen joined as parties to the proceeding. He says the claims Ms Foster raises, aspersonal grievances, must be pursued against RED. There is therefore no prospect ofrecovery against the defendants. It is open to the Court to use the powers in the HighCourt Rules 2016 to strike out the defendants as parties to the proceedings and joinRED as the sole defendant instead.10Ms Foster's submissions[18] Ms Foster submits that an argument based on the New Zealand Bill of RightsAct means the Authority has no jurisdiction. She says s 190 of the EmploymentRelations Act means the Court may exercise the powers conferred on the Authorityunder ss 162 and 164. She says such powers include identifying problems relating toindividuals' employment agreements.118 Synopsis of submissions on behalf of the first and second defendants dated 30 June 2022 at [5]–[8].9 At [16]–[24].10 At [25]–[34].11 Synopsis of submissions by the plaintiff dated 6 July 2022 at [24]–[27].[19] Ms Foster also submits that the defendants have been correctly joined to theproceeding due to their roles of employment with RED. She points to s 142W(3)(e)of the Employment Relations Act, dealing with persons involving breaches ofemployment standards. She says the defendants are "officers" of RED within themeaning of that section.12[20] Summarising, Ms Foster submits the burden rests with RED to prove the safetyand efficacy of the Pfizer vaccine as part of its duty of care to her. She says she hasand is exercising her absolute right under s 10 of the New Zealand Bill of Rights Actto decline to take part in a medical experiment. Pointing to s 92Y of the Health Act1956, she submits force may not be used to secure compliance with a direction. Shesays RED has no power of attorney over her, nor any authority control over what shechooses to put into her body. And she says despite requesting information andevidential proof of the safety and efficacy of the vaccine on three separate occasions,RED never furnished this information.13Legal principlesAppearance and objection to jurisdiction[21] Rule 5.49 of the High Court Rules provides:5.49 Appearance and objection to jurisdiction(3) A defendant who has filed an appearance may apply to the court todismiss the proceeding on the ground that the court has no jurisdictionto hear and determine it.(6) The court hearing an application under subclause (3) or (5) must,—(a) if it is satisfied that it has no jurisdiction to hear and determinethe proceeding, dismiss the proceeding; and(b) if it does not dismiss the proceeding under paragraph (a), setaside the appearance.12 At [28].13 At [29]–[38].(7) To the extent that an application under this rule relates to service ofprocess effected outside New Zealand under rule 6.27 or 6.28, it mustbe determined under r 6.29.Employment Relations Act[22] Section 161 of the Employment Relations Act provides, relevantly:161 Jurisdiction(1) The Authority has exclusive jurisdiction to make determinations aboutemployment relationship problems generally, including—(a) disputes about the interpretation, application, or operation ofan employment agreement:(b) matters related to a breach of an employment agreement:(e) personal grievances:(r) any other action (being an action that is not directly within thejurisdiction of the court) arising from or related to theemployment relationship or related to the interpretation of thisAct (other than an action founded on tort):(3) Except as provided in this Act, no court has jurisdiction in relation toany matter that, under subsection (1), is within the exclusivejurisdiction of the Authority.[23] An "employment relationship problem" is a question of fact. If the controversyarises in the course of the employment relationship and in a work context, it will bean employment relationship problem.14[24] Section 103 of the Act defines "personal grievance" as including claims thatthe employee has been unjustifiably dismissed; that the employee's employment was14 FMV v TZB [2021] NZSC 102, [2021] 1 NZLR 466 at [93]–[94].affected to the employee's disadvantage by some unjustifiable action by the employer;and that the employee has been discriminated against in the employee's employment.Improperly joined parties[25] For completeness, I set out the relevant provision on improperly joined parties.Rule 4.56 of the High Court Rules provides, relevantly:4.56 Striking out and adding parties(1) A Judge may, at any stage of a proceeding, order that—(a) the name of a party be struck out as a plaintiff or defendantbecause the party was improperly or mistakenly joined; or(b) the name of a person be added as a plaintiff or defendantbecause—(i) the person ought to have been joined; or(ii) the person's presence before the court may benecessary to adjudicate on and settle all questionsinvolved in the proceeding.(2) An order does not require an application and may be made on termsthe court considers just.Analysis[26] Mr Wood submits that s 161 of the Act was most recently addressed by theSupreme Court in FMV v TZB.15 He submits the Supreme Court stated that whatconstitutes an "employment relationship problem" is a simple question of fact:If the controversy arises during the course of the employment relationship andin a work context, then it will be an employment relationship problemTo be clear, given the test is factual, it will not matter whether other causes ofaction may also arise from the controversy between the parties. That acontroversy can also be pleaded without reliance on what is described (withunhelpful circularity) as an "employment right or interest" does not itself takeit outside the scope of "employment relationship problem". All that mattersis whether the controversy arose during the course of the employmentrelationship and in the work context. This necessarily means that if acontroversy can be framed in terms of one or more of the examples ins 161(1)(a)-(d), it must be brought in the Authority as an employment15 FMV v TZB, above n 14, at [93]–[94] (footnotes omitted).relationship problem. If it does not fit within any of those examples, it willthen be a question of whether the problem nevertheless relates to or arises outof an employment relationship in terms of the open-textured introductorylanguage of s 161(1) and the catch-all in paragraph (r).[27] Mr Wood submitted that regardless of Ms Foster's claim being based onalleged breaches of the Bill of Rights Act, her claim is in essence a personal grievancefor unjustified dismissal — falling squarely within s 161(1)(e) and therefore withinthe exclusive jurisdiction of the Authority.[28] Mr Wood further submitted that even if this were not the case, then Ms Foster'sclaim unavoidably arises during the course of her employment relationship with REDand in the context of Ms Foster's subsequent termination due to non-compliance withRED's policy. He therefore submitted that the "open textured introductory languageof s 161(1) and the catch-all in paragraph (r)" captures Ms Foster's claim and placesit within the exclusive jurisdiction of the Authority.[29] Mr Wood concedes that the catch-all phrasing of s 161(1)(r) excludes actions"founded on tort". He submitted that Ms Foster's claim has not been articulated so asto raise a claim founded on tort. He further submitted that in any case because theclaim may be framed as a personal grievance claim under s 161(1)(e) the exclusionrelated to actions based on tort and paragraph (r) does not apply.[30] Mr Wood submitted that Ms Foster's claim for "damages" relates essentiallyto her loss of income as a result of termination of her employment, calculated byreference to her pre-termination salary. Therefore these considerations are againrelated to the employment context rather than an action based on tort.[31] Mr Wood submitted that the issues concerning sufficiency or adequacy of therisk assessment undertaken by RED, the consultation undertaken concerning riskassessment, the formulation and implementation of its COVID-19 policy, are allmatters arising out of the employment relationship. RED's reasonableness orotherwise in insisting on compliance with the COVID-19 vaccination policy and thesubsequent termination of Ms Foster's employment for non-compliance with thatpolicy, all arise in the employment context.[32] Mr Wood also submitted that any rights asserted by Ms Foster based on theNew Zealand Bill of Rights Act were also within the exclusive jurisdiction of theAuthority. He referred to the case of CSN v Royal District Nursing Service NewZealand Ltd16 which concerned a government-mandated vaccination order. Hesubmits that while the Authority rightly declined jurisdiction to determine the legalityof the order, no protest was raised in relation to the New Zealand Bill of Rights Act-based arguments being led in the Authority questioning the scope of the order'sapplication.17[33] In conclusion, Mr Wood submits that it is clear from the FMV decision and theauthorities in subsequent decisions that the New Zealand Bill of Rights Act issuesarising from employment disputes are not outside the purview of the Authority andfurthermore sit within its exclusive jurisdiction.[34] Submissions by Mr Wood answer Ms Foster's submission that her rights ariseunder various sections of the New Zealand Bill of Rights Act, including s 10 (the rightnot to be subjected to medical or scientific experimentation without that person'sconsent), s 11 (the right to refuse to undergo any medical treatment), s 13 (the right tofreedom of thought, conscience and religion) and s 15 (the right to manifest religionand belief). I accept Mr Wood's submission that these issues, to the extent they areultimately relevant to Ms Foster's claim, do not take the claim out of the exclusivejurisdiction of the Authority.[35] In relation to Ms Foster's submission in respect of s 190 of the EmploymentRelations Act, as Mr Wood pointed out this is based on a misconception of thatstatutory provision. The references to "court" in that section are clearly references tothe Employment Court, not the High Court.Conclusion[36] I am of the view that the issues raised by Ms Foster in relation to thetermination of her employment and the implementation and application of RED's16 CSN v Royal District Nursing Service New Zealand Ltd [2022] NZERA 102.17 At [58]–[61].COVID-19 vaccination policy arise within the employment relationship and in thework context. As characterised by Mr Wood, Ms Foster's claim is either a personalgrievance under s 161(1)(e) of the Act, or otherwise falls within the catch-all paragraphof s 161(1)(r) and is not a claim based in tort for the purposes of the exclusion in thatparagraph. Notwithstanding Ms Foster has relied on rights under the New ZealandBill of Rights Act, the claim remains within the exclusive jurisdiction of the Authority.Result[37] Ms Foster's application is dismissed pursuant to s 161(3) of the EmploymentRelations Act on the basis that the High Court does not have jurisdiction to hear theclaim.[38] As the Court has declined jurisdiction, it is not necessary for me to deal withthe issue of Mr Wilson and Mr Brownrigg being parties to the proceedings asdefendants rather than RED.[39] Costs are awarded to Mr Wilson and Mr Brownrigg on a 2B basis...Associate Judge Taylor