UNDERHILL & ANOR v COCA-COLA AMATIL (NZ) LIMITED [2018] NZCA 521
An extension of time was granted and leave to appeal was granted because the stated questions are questions of law of general importance appropriate for determination by the Court of Appeal.
Source-derived case information.
- Citation
- [2018] NZCA 521
- Parties
- Applicant: Tyrone Wayne Underhill; Applicant: Kane Joseph Underhill; Respondent: Coca-Cola Amatil (NZ) Limited
- Court
- Court of Appeal
- Jurisdiction
- New Zealand
- Judgment Date
- 22 November 2018
- Procedural Posture
- Application for Leave to Appeal / Application for Extension of Time and Leave to Appeal in the Court of Appeal
- Outcome
- Extension of time granted; leave to appeal granted; approved questions submitted to the Court of Appeal for decision; costs reserved.
- Legal Topics
- Unjustified Dismissal, Reinstatement, Compensation, Extension of Time, Leave to Appeal, Procedural Fairness, Contributory Fault
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tyrone Wayne Underhill
Applicant
Kane Joseph Underhill
Applicant
Coca-Cola Amatil (NZ) Limited
Respondent
Procedural Posture
Application for Leave to Appeal / Application for Extension of Time and Leave to Appeal in the Court of Appeal
Legal Issues
- 1 Whether there was evidence to justify concluding reinstatement was inappropriate or impracticable or unreasonable
- 2 Whether the Employment Court erred in placing burden on applicants to show reinstatement was reasonable and practicable
- 3 Whether the Employment Court erred by reducing compensation for unrelated contributory fault
Ratio Decidendi
An extension of time was granted and leave to appeal was granted because the stated questions are questions of law of general importance appropriate for determination by the Court of Appeal.
Court Disposition
Extension of time granted; leave to appeal granted; approved questions submitted to the Court of Appeal for decision; costs reserved.
Orders
- Extension of time to file an application for leave to appeal under r 29A(1) Court of Appeal (Civil) Rules 2005 is granted.
- Application for leave to appeal under s 214(2) Employment Relations Act 2000 is granted.
Full Case Text
Judgment text and source record
1 paragraphs
UNDERHILL & ANOR v COCA-COLA AMATIL (NZ) LIMITED [2018] NZCA 521 [22 November 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA632/2017[2018] NZCA 521BETWEEN TYRONE WAYNE UNDERHILLFirst ApplicantKANE JOSEPH UNDERHILLSecond ApplicantAND COCA-COLA AMATIL (NZ) LIMITEDRespondentHearing: 19 November 2018Court: Cooper, Winkelmann and Gilbert JJCounsel: Applicants in personB A Smith and T P Oldfield for RespondentJudgment: 22 November 2018 at 12.30 pmJUDGMENT OF THE COURTA The application under r 29A(1) of the Court of Appeal (Civil) Rules 2005 foran extension of time to file an application for leave to appeal under s 214(2)of the Employment Relations Act 2000 is granted.B The application for leave to appeal the decision of the Employment Court inUnderhill v Coca-Cola Amatil (NZ) Ltd [2017] NZEmpC 117 is granted.C The approved questions for consideration by this Court are:(a) whether there was any evidence from which the Employment Courtcould properly conclude that reinstatement was an inappropriateremedy, or was not practicable or reasonable;(b) given the Employment Court's conclusion that the applicants wereunjustifiably dismissed because the respondent failed to affordthe applicants any of their procedural rights prior to dismissal, didthe Employment Court err:(i) by holding it was for the applicants to show thatreinstatement was reasonable and practicable; and(ii) in reducing the award of compensation on the basis of anunrelated contributory fault.(c) if the Court was correct to award monetary compensation ratherthan reinstatement, did the Court err by:(i) calculating the applicants' entitlement by reference to anhourly rate derived from a contract that had beensuperseded; and(ii) failing to address any arrears outstanding or accrued atthe time of dismissal.D Costs are reserved.____________________________________________________________________REASONS OF THE COURT(Given by Cooper J)[1] The applicants, laypersons acting without legal advice, were 10 days late infiling the necessary application for leave to appeal from a decision of the EmploymentCourt under s 214(2) of the Employment Relations Act 2000. Although Coca-ColaAmatil (NZ) Ltd opposed the extension of time for appealing, it did not assertprejudice. In the circumstances, we extend the time for appealing pursuant to r 29A(1)of the Court of Appeal (Civil) Rules 2005.11 Since the time for appealing is established by the Employment Relations Act, we consider it isr 29A that applies and not r 5(2) under which the applicants' application was advanced.[2] We are satisfied that the questions set out above are in each case a question oflaw involved in the appeal which by reason of its general importance ought to besubmitted to the Court of Appeal for decision.[3] Costs are reserved.Solicitors:SBM Legal, Auckland for Respondent