KENNEDY v EMPLOYMENT RELATIONS AUTHORITY [2022] NZCA 12

KENNEDY v EMPLOYMENT RELATIONS AUTHORITY [2022] NZCA 12 [10 February 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA479/2020[2022] NZCA 12BETWEEN SUSAN MARGARET KENNEDYApplicantAND EMPLOYMENT RELATIONSAUTHORITYFirst RespondentTHE CHIEF EXECUTIVE OF ORANGATAMARIKI — MINISTRY FORCHILDRENSecond RespondentEMPLOYMENT COURTThird RespondentHearing: 30 November 2021Court: French, Gilbert and Collins JJCounsel: Applicant in personS M Bisley and L Robertson for Second RespondentNo appearance for First or Third RespondentsJudgment: 10 February 2022 at 3 pmJUDGMENT OF THE COURTA The application for judicial review is dismissed.B The applicant must pay costs to the second respondent for a standardapplication on a band A basis and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)Introduction[1] Ms Kennedy was employed by Oranga Tamariki as a senior social worker forapproximately eight years until she resigned in February 2018. She commencedpersonal grievance proceedings in the Employment Relations Authority (the ERA)claiming she was bullied by various individuals in the course of her employment,treated unfairly, and otherwise disadvantaged. She claims she was constructivelydismissed. She links the alleged conduct to her suffering two strokes, experiencingsuicidal thoughts and attempting suicide.[2] Ms Kennedy's claims are contested and have not yet been determined.[3] After Ms Kennedy published her claims in various media, Oranga Tamarikiobtained an interim order from the ERA prohibiting publication of the pleadings,evidence and the names of witnesses, employees or former employees (the subject ofher complaints) (the ERA decision).1 The ERA accepted that the "nature ofthe allegations, which are currently untested, is such that the named employees arehighly likely to suffer distress and reputational damage if the orders are not granted".2The interim non-publication order was made in the exercise, or purported exercise, ofthe powers conferred on the ERA under cl 10(1), sch 2 of the Employment RelationsAct 2000 (the Act):10 Power to prohibit publication(1) The Authority may, in respect of any matter, order that all or any partof any evidence given or pleadings filed or the name of any party orwitness or other person not be published, and any such order may besubject to such conditions as the Authority thinks fit.[4] Ms Kennedy applied pursuant to s 179 of the Act to have the matter heard bythe Employment Court and sought a hearing de novo. She challenged the ERA's power1 Kennedy v Chief Executive of Oranga Tamariki — Ministry for Children ERA Auckland 3024458,28 August 2019 [ERA decision].2 At [9].to make the order, contending it breached her right to freedom of expression assuredunder s 14 of the New Zealand Bill of Rights Act 1990. She argued that the ERA'spowers are confined to employment relationship problems and do not extend"to making general directions restricting persons' rights in their general lives".She noted that details of her case had already been made public, on television and innewspaper reports, and she therefore contended the interim non-publication order wasfutile. Finally, she argued it was:unjust and unfair that the victim of bullying has her reputation and judgementquestioned in public while the bullies and the organisation that condoned thisbehaviour are effectively protected by the [ERA].[5] The Employment Court dismissed Ms Kennedy's challenge in a decision givenon 5 May 2020 (the Employment Court decision).3 Judge Holden consideredthe interim non-publication order was a determination about procedure and thereforecould not be challenged because of s 179(5)(a) of the Act.4 Because of its centralimportance to the decision, it is helpful to set out s 179 in full at this stage:179 Challenges to determinations of Authority(1) A party to a matter before the Authority who is dissatisfied with awritten determination of the Authority under section 174A(2),174B(2), 174C(3), or 174D(2) (or any part of that determination) mayelect to have the matter heard by the court.(2) An election under subsection (1) must be made in the prescribedmanner and within 28 days after the date of the determination.(3) The election must—(a) specify the determination, or the part of the determination, towhich the election relates; and(b) state whether or not the party making the election is seekinga full hearing of the entire matter (in this Part referred to asa hearing de novo).(4) If the party making the election is not seeking a hearing de novo,the election must specify, in addition to the matters specified insubsection (3),—(a) any error of law or fact alleged by that party; and3 Kennedy v Chief Executive of Oranga Tamariki — Ministry for Children [2020] NZEmpC 58[Employment Court decision].4 At [16].(b) any question of law or fact to be resolved; and(c) the grounds on which the election is made, which grounds areto be specified with such reasonable particularity as to givefull advice to both the court and the other parties of the issuesinvolved; and(d) the relief sought.(5) Subsection (1) does not apply—(aa) to an oral determination or an oral indication of preliminaryfindings given by the Authority under section 174(a) or (b);and(a) to a determination, or part of a determination, aboutthe procedure that the Authority has followed, is following, oris intending to follow; and(b) without limiting paragraph (a), to a determination, or part ofa determination, about whether the Authority may follow oradopt a particular procedure.Application for review[6] Ms Kennedy now applies for judicial review of the ERA decision andthe Employment Court decision. She seeks a declaration that neither the ERA northe Employment Court had jurisdiction to make the interim non-publication order.She also seeks an order quashing those decisions.ERA decision[7] The application for review of the ERA decision must be dismissed forthe simple reason that this Court has no jurisdiction to review it pursuant to s 194 ofthe Act. The Employment Court has exclusive jurisdiction to determine anyapplication for judicial review of the exercise, or purported exercise, of any statutorypower of decision by the ERA, as the interim non-publication order undoubtedly was:194 Application for review(1) If any person wishes to apply for review under the Judicial ReviewProcedure Act 2016, or bring proceedings seeking a writ or order of,or in the nature of, mandamus, prohibition, or certiorari, or adeclaration or injunction, in relation to the exercise, refusal toexercise, or proposed or purported exercise by—(a) the Authority; of a statutory power or statutory power of decision (as defined bysection 4 of the Judicial Review Procedure Act 2016) conferred by orunder this Act or any of the provisions of Parts 5, 6, 7, or 7A ofthe State Sector Act 1988, the provisions of subsections (2) to (4) ofthis section apply.(2) Despite any other Act or rule of law, but subject to section 184(1A),the court has full and exclusive jurisdiction to hear and determine anyapplication or proceedings of the type referred to in subsection (1) andall such applications or proceedings must be made to or brought inthe court.(3) Where a right of appeal (which includes, for the purposes ofthis subsection, the right to make an election under section 179) isconferred on any person under this Act or the Public Service Act 2020or the Education and Training Act 2020 in respect of any matter, thatperson may not make an application under subsection (1) in respect ofthat matter unless any appeal brought by that person in the exercise ofthat right of appeal has first been determined.[8] Ms Kennedy did not apply to the Employment Court for judicial review ofthe ERA decision. Instead, she sought to challenge it by way of a de novo hearing inthe Employment Court pursuant to s 179 of the Act.Employment Court decision[9] This Court has exclusive power to review a decision of the Employment Courtin terms of s 213(2) of the Act. However, the review power is limited to the groundof lack of jurisdiction:5193 Proceedings not to be questioned(1) Except on the ground of lack of jurisdiction or as provided in sections213, 214, 217, and 218, no decision, order, or proceedings of the courtare removable to any court by certiorari or otherwise, or are liable tobe challenged, appealed against, reviewed, quashed, or called inquestion in any court.(2) For the purposes of subsection (1), the court suffers from lack ofjurisdiction only where,—(a) in the narrow and original sense of the term jurisdiction, it hasno entitlement to enter upon the inquiry in question; or5 Parker v Silver Fern Farms Ltd [2011] NZCA 564, [2012] 1 NZLR 256 at [19]; and Moodie vEmployment Court [2012] NZCA 508, [2012] ERNZ 201 at [15].(b) the decision or order is outside the classes of decisions ororders which the court is authorised to make; or(c) the court acts in bad faith.[10] Ms Kennedy's application for review is not grounded on a lack of jurisdictionin this narrow sense. She does not contend that the Employment Court had nojurisdiction to deal with her application for review of the ERA decision; she herselfinvoked its jurisdiction to do so. The Employment Court plainly had jurisdiction toentertain Ms Kennedy's application. Its decision dismissing that application waswithin the class of decisions it was authorised to make. Ms Kennedy does not suggestthe Employment Court acted in bad faith. It follows that the application for review ofthe Employment Court's decision falls outside the scope of this Court's very narrowjurisdiction on review. This aspect of the application must also be dismissed.[11] For completeness, we accept it is arguable that an interim non-publicationorder is not a determination about the procedure the ERA has followed, is followingor is intending to follow. If it was not a procedural order, s 179(5) of the Act did notapply. If this is the correct legal position, the Employment Court erred in law indismissing Ms Kennedy's challenge on that basis. However, any such error could onlybe addressed by way of appeal to this Court on a question of law under s 214. The timefor any appeal under that section has long since passed (the time limit is 28 days fromthe date of issue of the decision).6 Importantly, whether or not the Employment Courtdid err in law is irrelevant for the purposes of the present application. It does not meanthe Employment Court lacked jurisdiction in the narrow sense applicable such that itsdecision is amenable to judicial review by this Court.Result[12] The application for judicial review is dismissed.[13] The applicant must pay costs to the second respondent for a standardapplication on a band A basis and usual disbursements.Solicitors: Buddle Findlay, Wellington for Second Respondent6 Employment Relations Act 2000, s 214(2).