WAIKATO DISTRICT HEALTH BOARD v NEW ZEALAND NURSES ORGANISATION [2017] NZCA 247

WAIKATO DISTRICT HEALTH BOARD v NEW ZEALAND NURSES ORGANISATION [2017] NZCA 247[14 June 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA389/2016[2017] NZCA 247BETWEEN WAIKATO DISTRICT HEALTH BOARDAppellantAND NEW ZEALAND NURSESORGANISATIONRespondentHearing: 26 April 2017Court: Miller, Winkelmann and Clifford JJCounsel: P David QC and A Russell for AppellantR Harrison QC and J Lawrie for RespondentJudgment: 14 June 2017 at 11 amJUDGMENT OF THE COURTA The appeal is dismissed.B The appellant must pay the respondent costs for a standard appeal on aband A basis and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Clifford J)Introduction[1] On 12 July 2016 Chief Judge Colgan of the Employment Court granted anapplication by the respondent, the New Zealand Nurses Organisation, for a rehearingof part of an earlier decision of that Court involving an employment dispute betweenMarissa Panettiere and the appellant, the Waikato District Health Board.1 The WaikatoDHB, with leave of this Court,2 now appeals that decision.[2] The question of law for our determination is:Did the Employment Court err in law in exercising its power under cl 5 ofsch 3 to the Employment Relations Act 2000 to order a rehearing of the NewZealand Nurses Organisation's challenge which had been dismissed by a finaljudgment of the Court?Facts[3] Ms Panettiere is a midwife. On 16 November 2012 Ms Panettiere resignedfrom her employment with the Waikato DHB. Following her resignationMs Panettiere claimed she was entitled to be paid a retiring gratuity. She did so byreference to provisions of the relevant collective agreement (the Nurses' CollectiveAgreement) which were of specific application to employees of the Waikato DHB. Asrelevant, those provisions read:Waikato DHBRETIRING GRATUITIESNOTE: This clause shall not apply to employees employed after 30June 1992.1. The employer may pay a retiring gratuity to staff retiring from theorganisation who have had not less than 10 years' service with theemployer, with the employer and one or more other District HealthBoard or it[s] predecessors and with one or more of the followingservices: the Public Service, the Post Office, New Zealand Railwaysor any university in New Zealand.2. For the purposes of establishing eligibility for a gratuity, totalorganisational service may be aggregated, whether this be part-timeor whole-time, or a combination of both at different periods. Part-timeservice is not to be converted to its whole-time equivalent for thepurpose of establishing eligibility.1 New Zealand Nurses Organisation v Waikato District Health Board [2016] NZEmpC 89[Rehearing decision] and New Zealand Nurses Organisation v Waikato District Health Board[2016] NZEmpC 50 [Substantive decision].2 Waikato District Health Board v New Zealand Nurses Organisation [2016] NZCA 488 [Leavedecision].[4] All involved acknowledged that those provisions "grandfathered" theentitlement to retiring gratuities to people who had been employed by theWaikato DHB before or on 30 June 1992. Beyond that, agreement as to their meaningproved elusive.[5] The Waikato DHB declined Ms Panettiere's claim. Based on the materialavailable to us, it would appear that it initially based its decision on Ms Panettiere nothaving the qualifying 10 years' service. It did so by reference to the following,generally applicable definition of service which appeared in the Nurses' CollectiveAgreement at that time:Service means the current continuous service with the employer and itspredecessors (Hospital and Health Services, Crown Health Enterprises,Regional Health Authorities, Health Funding Authority, Area Health Boardsand Hospital Boards) except where otherwise defined in the applicable clause.As of the commencement of the previous MECA07 service will transferbetween DHBs and service shall not be deemed to be broken by an absence ofless than three months. However, where the employee remains activelyengaged on nursing or midwifery related work or study whilst absent, theperiod of three months shall extend to twelve months. This period of absencedoes not count as service for the purpose of attaining a service relatedentitlement.[6] On 12 December 2012 the Nurses Organisation wrote to the Waikato DHB onMs Panettiere's behalf. It said that, given the ability to aggregate service provided byparagraph two of the retiring gratuities provisions, continuous service was notrequired. It asked the Waikato DHB to pay Ms Panettiere what she was owed.[7] The Waikato DHB replied on 30 January 2013, declining the claim. It saidMs Panettiere had not retired at all. Rather she had resigned and taken up regular paidwork in her own midwifery practice as a Lead Maternity Carer (LMC).3 Thus she didnot qualify for consideration for a discretionary retiring gratuity. Moreover, whilst theWaikato DHB acknowledged service could be aggregated to meet the 10-yearrequirement, it maintained such service was required to be continuous.[8] From that point onwards the two questions, of retirement and continuity ofservice, were expressed in a variety of forms in the parties' correspondence and in3 A Lead Maternity Carer is a person who co-ordinates maternity care for pregnant women.their statements of problem and reply when they took their dispute to the EmploymentRelations Authority (the Authority).The Authority's Determination[9] The Authority released its determination on 27 January 2015, upholding theposition taken by the Waikato DHB on the retirement issue:4In Ms Panettiere's case she remained registered to practice as a midwife andwas doing so through her work as an LMC. Her evidence established that sheworked shifts a[s] a midwife at private birthing units and expanded herpractice as an LMC in the following months. She simply had not 'withdrawn'from her occupation and profession so could not reasonably be said to have'retired' in any way meaningful for the interpretation and application ofWDHB's retirement gratuity clause.[10] Having acknowledged it was not strictly necessary to do so,5 the Authoritywent on to consider whether, had Ms Panettiere in fact retired, her employment historywould have met the service requirement.[11] Ms Panettiere was first employed in the public service (IRD) in 1977. From1980 to 1987 she had worked with local hospital boards (Thames and Waikato) andthen the Ministry of Health. Between 1987 and 1996 Ms Panettiere worked at theWaikato Hospital. She took maternity leave from June 1990 to August 1991, and fora time had worked in Tauranga, both at the local hospital and as a GP's practice nurse.She stopped working for the Waikato DHB in November 1996 and started working asa midwife privately in Huntly. She resumed her employment with the Waikato DHBin September 1997, staying in that job until November 2012.6[12] Given that history, the Waikato DHB had argued that on 30 June 1992,Ms Panettiere was not employed by it. As relevant, her employment with the WaikatoDHB had not begun until September 1997, when she had returned to work from HuntlyBirthcare, an entity which was not part of its service. Hence she was not in the"grandfathered" group. More broadly, and as the Authority put it:4 New Zealand Nurses Organisation v Waikato District Health Board [2015] NZERA Auckland 18[Authority determination] at [46].5 At [47].6 We have drawn these dates from the Authority determination, above n 4, at [51].[53] The evidence and submissions provided for the Authorityinvestigation led to questions about whether, properly interpreted, the WDHBretirement gratuity clause required an employee to:(a) have been a current employee of WDHB on 30 June 1992; and(b) have been continuously employed by WDHB from that date to thedate of her or his retirement.[13] The Authority found that the retirement gratuities provisions did not requireservice as at 30 June 1992: rather they excluded employees employed after that date.7Thus an employee — like Ms Panettiere — who was employed on 30 May 1992, buthad left before 30 June 1992, could theoretically be part of the grandfathered class.8[14] At issue then was whether the "continuous" requirement of the definition ofservice applied, or whether this was a situation where service was "otherwise" definedin those provisions.[15] The Authority concluded that, based on an analysis of the text of the Nurses'Collective Agreement as it applied both to the Waikato and other DHBs, continuousservice was not required from the cut-off date.9 It then reasoned:[64] In application to Ms Panettiere's circumstances, the effect of thisinterpretation was that — provided she was in the employment of WDHB atsome time on or before 30 June 1992 — she was within the closed categoryof people who could later be considered for a retirement gratuity. It was notrelevant, for this purpose (and only that purpose), if she had left theemployment of WDHB and later returned to it — or, put another way, she didnot have current, continuous service with WDHB during all the interveningperiod. The three necessary factors were to:(a) have been employed by WDHB on 30 June 1992 or some time sooner;and(b) be employed by WDHB (and not some other entity) at the time ofretiring; and(c) in her total employment history, prior to retiring from her WDHBposition, to have completed at least ten years' service with WDHB,other health boards or their predecessors, the Public Service, the PostOffice, New Zealand Railways or a New Zealand university.[65] If she had met those criteria, the relevant service and length of servicewould be calculated by aggregating her service with each of the identified7 At [54].8 At [54].9 At [64].employing entities, as contemplated by the reference in the second paragraphof the WDHB clause to "total organisation service".[16] On that basis Ms Panettiere would have qualified for consideration for aretirement gratuity.The Employment Court Decision[17] The Nurses Organisation and Ms Panettiere, as first and second plaintiffs (inFebruary 2015), and the Waikato DHB, as a plaintiff on its own (in June 2015), filedseparate statements of claim in the Employment Court under s 179 of the EmploymentRelations Act 2000 (the Act) challenging the Authority's determination. Theproceedings commenced by the Nurses Organisation and Ms Panettiere were EMPC43/2015. Those of the Waikato DHB were EMPC 155/2015.[18] Intervener status was subsequently granted to Central Regions TechnicalAdvisory Services Limited (CRTAS). CRTAS provides advisory services toemployers, and intervened in support of the positon taken by the Waikato DHB.[19] As the pleadings stood when the matter was heard in the Employment Court:(a) The Nurses Organisation and Ms Panettiere sought a declaration thatMs Panettiere had "retired from" the Waikato DHB within the meaningof the retiring gratuity provision and that accordingly, on the basis ofthe Authority's finding as to qualifying service, Ms Panettiere wasentitled to a retiring gratuity.(b) The Waikato DHB, supported by CRTAS, challenged the Authority's,admittedly obiter, finding that Ms Panettiere's employment qualifiedher for retirement gratuity. By reference to her history of employment,it sought a declaration:that an employee whom commenced after 30 June 1992irrespective of previous employment with the [Waikato DHB]is not eligible for a retirement gratuity pursuant to the relevantcollective employment agreement.[20] Judge Ford concluded that the Authority's approach, of considering thequestion of retirement before that of service, put the cart before the horse.10 It wasmore logical, he reasoned, first to determine the issue raised by the Waikato DHB inits cross-challenge. As put by Mr David QC, counsel for the Waikato DHB, that waswhether Ms Panettiere was:11[W]ithin the closed class of employees who could apply for a retiring gratuity"given that her contract of employment was entered into after the cut-off dateof 30 June 1992.[21] On that issue the Judge found:12It seems to me that on an objective analysis of the natural and ordinarymeaning of the introductory Note to Appendix 2(a) of the [Nurses' CollectiveAgreement], a reasonable reader having the background knowledge of theparties would interpret the wording to mean that anyone employed after 30June 1992 was excluded from a retirement gratuity entitlement, irrespectiveof whether or not they had been employed some time sooner.[22] The Judge concluded:13For the above reasons, I dismiss the [Nurses Organisation and Ms Panettiere's]challenge and uphold the [Waikato DHB's] cross-challenge based on the cut-off date issue. Having reached this conclusion, I do not find it necessary to goon to consider whether Ms Panettiere's voluntary resignation in 2012amounted to a 'retirement' within the meaning of the retirement gratuitycontained in Appendix 2(a) of the MECA.The application for recall or rehearing[23] The Nurses Organisation applied for a recall of Judge Ford's decision or, in thealternative, a rehearing. It did so on the basis Judge Ford had not determined itsindependent challenge to the Authority's determination on retirement. The hearinghad been conducted, and extensive evidence and legal argument adduced, in relationto that issue. It was an issue of general importance to its members. A recall or arehearing to provide a determination of that issue was in the interests of justice.10 Substantive decision, above n 1, at [30].11 At [30].12 At [44].13 At [49].[24] The Waikato DHB opposed the application for a recall or rehearing. It saidthat none of the required grounds for a recall existed. The retirement issue which theNurses Organisation sought to have determined in the recall could not have anymaterial effect on the outcome of the case. The recall application was wrong inprinciple. Moreover, the trial Judge was no longer sitting. The Waikato DHB opposeda rehearing on similar grounds. A rehearing would be granted where there was asubstantial risk of a miscarriage of justice. No such risk existed here, again becausethe issue in question was not material to the outcome of the case.The Chief Judge's decision[25] Chief Judge Colgan declined a recall. He noted there was no express power torecall a judgment.14 The Employment Court had, he acknowledged, from time to timerecalled judgments to correct errors or omissions.15 Other instances of recall werewhere the Court had overlooked dealing with costs.16 That power of recall had notgenerally been applied to substantive issues. Further, a recall usually involved the trialjudge considering a claim and reissuing his or her judgment. The Employment Court'spower to rehear could permit another judge to undertake that exercise.17 The ChiefJudge then considered the scope of that power.[26] The Judge referred to the express power to order a rehearing found in cl 5 ofsch 3 to the Act:5 Rehearing(1) The court has in every proceeding, on the application of an originalparty to the proceeding, the power to order a rehearing to be had uponsuch terms as it thinks reasonable, and in the meantime to stayproceedings.(2) Despite subclause (1), a rehearing may not be granted on anapplication made more than 28 days after the decision or order, unlessthe court is satisfied that the application could not reasonably havebeen made sooner.(3) The application—14 Rehearing decision, above n 1, at [17].15 At [20].16 At [20].17 At [17].(a) must be served on the opposite party not less than 7 clear daysbefore the day fixed for the hearing; and(b) must state the grounds on which the application is made.(4) Those grounds must be verified by affidavit.(5) The application does not operate as a stay of proceedings unless thecourt so orders.(6) The rehearing need not take place before the Judge by whom theproceedings were originally heard.[27] That power, the Chief Judge noted, was discretionary and broad.18 The basisof the proper exercise of that power had been discussed by this Court, on appeal fromthe full Employment Court, in Ports of Auckland Ltd v New Zealand WaterfrontWorkers Union.19 The issue was whether the Employment Court had in the followingpassage misstated the relevant test for recall on the grounds of a miscarriage ofjustice:20We observe, as the Court did in the Cavalier Carpets case, thatthere are no restrictions on the grant of a rehearing except as totime. It is undesirable that the Court should supply restrictionsthat appear nowhere in the statute. However, every judicialdiscretion must be exercised according to clear principle.What considerations should move the Court to order to bereheard a case that has already been concluded? Obviously if apositive finding can be made that a miscarriage of justice hastaken place that would be enough. The likelihood of amiscarriage of justice should also be enough, especially in a casesuch as this where contrary to the Court's usual practice thequestion of rehearing or no is separated from the rehearing. Theparticular species of miscarriage of justice will include thoselisted in Cavalier Carpets but is not confined to them. A merepossibility or suspicion is however not enough to warrantdisturbing a considered judgment reached after a full and wellexercised opportunity to the parties to be heard.Our view is that in general the Court must look toward thepossibility of a miscarriage of justice, but should not look forproof of that possibility to a high standard. For balance, it mustgive equal weight to the importance of certainty in litigation andthe right normally enjoyed by a successful litigant, particularlyin dispute resolution cases like this one, to enjoy the fruits of ajudgment in its favour.18 At [17].19 Ports of Auckland Ltd v New Zealand Waterfront Workers Union (1995) 2 ERNZ 85 (CA).20 New Zealand Waterfront Workers Union v Ports of Auckland Ltd [1994] 1 ERNZ 604 at 607.[28] The submission by reference to those comments was that the "possibility of amiscarriage of justice" was not enough. What was required was a substantial risk ofsuch a miscarriage. The Chief Judge summarised the Court of Appeal's reasons forrejecting that appeal as follows:21[26] The Court of Appeal rejected a submission that the proper test waswhether there was a "substantial risk" of miscarriage of justice. Takentogether, the foregoing paragraphs from the judgment of the full Court wereheld to be correct. Interpreting the full Court's phrase "look toward thepossibility" in the final paragraph quoted above, the Court of Appealconsidered this to mean that the Employment Court should have regard to thedegree of possibility, where it is something less than a probability but morethan a mere possibility. The Court of Appeal confirmed that Parliament hadchosen to confer on the Employment Court a discretion "in wide terms" toallow rehearings.(Footnotes omitted.)[29] Applying those principles the Chief Judge reasoned that, whilst the specificgratuity provision Ms Panettiere relied on was only relevant to the Waikato DHB andits employees, the meaning of the phrase "retirement from an organisation" was of farbroader significance.22 It was also relevant to the employees of 19 other DHBs andperhaps even "other similar entities that were formerly local or central governmentagencies".23 The intervention of CRTAS showed that. That issue was one of somegeneral importance. The role of the Employment Court was to promote and encouragesuccessful employment relationships.[30] Chief Judge Colgan was therefore satisfied that the Court's dismissal of theNurses Organisation's application, without considering or deciding the "retirement"issue, had brought about a "real possibility of a miscarriage":24That possible miscarriage is the failure of the Court to decide a party's pleadedcase on which evidence and submissions were heard fully, but which wasdismissed without consideration of its merits. The interests of justice dorequire the Court in this case to hear and decide this dispute on its merits.21 Rehearing decision, above n 1.22 At [32].23 At [32].24 At [43].[31] The Chief Judge proceeded to order "a rehearing of that part of theproceedings, being a dispute about the interpretation, application or operation of theretirement gratuity provisions of the collective agreement".25This appeal[32] For the Waikato DHB, Mr David argued that the Employment Court hadformulated the test for the grant of a rehearing incorrectly. The submission was thatthe test should be whether there was a real or substantial risk of a miscarriage ofjustice, not the "real possibility" approach taken. The Court had also erred when ithad identified the Nurses Organisation as having an independent claim of its own,distinct from that of Ms Panettiere. The claims were one and the same. The factualissues regarding the length of service involved a threshold matter.[33] Therefore, having found that Ms Panettiere's service did not qualify her forconsideration of a retirement gratuity, no miscarriage could possibly arise from theJudge not determining the retirement issue. The determination of that issue could haveno effect on the claim brought by Ms Panettiere, with the support of the NursesOrganisation. In those circumstances, that issue became a theoretical one. Thedecision in Julian v Air New Zealand Ltd held that the Employment Court should notdecide issues of contract interpretation by reference to a hypothetical problem.26Judge Ford's decision was an orthodox approach to the determination of a dispute.[34] For the Nurses Organisation, Mr Harrison QC supported Chief Judge Colgan'sanalysis of the proceedings that were before Judge Ford. Section 179 of the Actestablished that there were two distinct questions for Judge Ford to decide: that raisedby the Nurses Organisation and that raised by the Waikato DHB. As the Chief Judgehas reasoned, the retirement issue had been approached by all parties on the basis thatit had a significance beyond that of Ms Panettiere's individual case. Rather, the"retirement" question raised issues of principle that were relevant to the nursesemployed by all of the employers covered by the Nurses Collective Agreement.25 At [44].26 Julian v Air New Zealand Ltd [1994] 2 ECNZ 612 at 628.[35] The significance of that issue was reflected in the Nurses Organisation'sargument that the interpretation of the retirement gratuity provision advanced by theWaikato DHB was based on an employee paradigm which no longer existed. In thecircumstances the Judge was well within his discretionary jurisdiction when hedetermined that Judge Ford's failure to consider the merits of theNurses Organisation's retirement challenge had given rise to the real possibility of amiscarriage of justice.Analysis and outcome[36] We first consider the Waikato DHB's challenge to Chief Judge Colgan'sdecision to grant a rehearing. We dismiss that challenge. We then comment on theChief Judge's approach to the possibility of recall. We note that theEmployment Court does, in fact, have a power of recall. Furthermore, an acceptedground for the grant of a recall is where a judge has failed to determine an issueproperly before the Court. A power of recall is not exercisable only by the judge whomade the decision, but in appropriate cases (including where a judge has retired) byone of his or her colleagues. We therefore conclude that Chief Judge Colgan couldalso have granted recall. That conclusion supports our decision that the Judge did notact incorrectly in granting a rehearing.A rehearing?[37] The Waikato DHB's criticism of the Employment Court's approach to thethreshold miscarriage issue, in our view and echoing the words of this Court in Ports ofAuckland Ltd, involves "subtle refinements based on semantic differences [which] arenot helpful".27 We accept the Chief Judge may have slightly overstated the positionwhen he said that this Court in Ports of Auckland Ltd had rejected a submission thatthe proper test was whether there was a "substantial risk" of miscarriage of justice.What the Court said in response to the challenge to the Employment Court's reasoningset out at [27] was:28Mr Towner challenged the reference to "possibility" in the last of theseparagraphs, and submitted that the proper test was whether there was a27 Ports of Auckland Ltd, above n 19, at 88.28 At 88.substantial risk of a miscarriage of justice. The three paragraphs quoted fromthe judgment must be read together, however, and we do not think it can besaid that the Court has erred. It has stated that an actual miscarriage of justicemust be enough, and the likelihood of a miscarriage should also be enough. Amere possibility is rejected as being insufficient. In the next sentence it saysthe Court must "look toward the possibility". In its context we read this asmeaning that the Court should have regard to the degree of possibility, whereit is something less than a probability but more than a mere possibility. TheCourt then refers to the standard of proof required, and to the need to balancethe risk of injustice against the importance of certainty. Mr Towner wasconcerned that the last paragraph cited might suggest that any possibilitymight be enough, but this is clearly not what is meant if one looks at thecontext. A possibility that is more than a "mere" possibility could be aptlydescribed as a substantial possibility, which is the same as the "substantialrisk" test proposed by Mr Towner. Subtle refinements based on semanticdifferences are not helpful. Parliament has chosen to confer the discretion inwide terms, and we find no error in the approach adopted by the full Court.[38] The further argument was that the Employment Court had in fact adopted thetest of "mere possibility" when it said that it was appropriate to grant a rehearingbecause there was "a possibility of miscarriage" if the challenged determination stood.To that, the Court responded:29The reference in this passage to the possibility of a miscarriage of justice must,we think, be read in the context of the earlier statement that a "merepossibility" would not be sufficient. It means a real or substantial risk. [39] What follows is two-fold. First, there was no error in Chief Judge Colgan'ssummary of the relevant passage when he granted the rehearing.30 Second, there wasno meaningful distinction in this context between the phrase a "substantial risk" of amiscarriage of justice, a "possibility that was more than a mere possibility" or the "realrisk" formulation used by Chief Judge Colgan in his decision.[40] The Waikato DHB's second proposition was that there was no possibility ofmiscarriage, whatever the requirements of that test, because a separate resolution ofthe retirement issue could not affect the outcome of Ms Panettiere's dispute with it.Chief Judge Colgan had been wrong to categorise the Nurses Organisation's disputewith the Waikato DHB as being separate and independent from that of Ms Panettiere.29 At 89.30 See above at [28].[41] We do not accept that proposition, essentially agreeing withChief Judge Colgan's reasons as to why he granted a rehearing.[42] The object of the Act provides the context within which the Employment Courtexercises its jurisdiction:3 Object of this ActThe object of this Act is—(a) to build productive employment relationships through thepromotion of good faith in all aspects of the employmentenvironment and of the employment relationship—(i) by recognising that employment relationships mustbe built not only on the implied mutual obligations oftrust and confidence, but also on a legislativerequirement for good faith behaviour; and(ii) by acknowledging and addressing the inherentinequality of power in employment relationships; and(iii) by promoting collective bargaining; and(iv) by protecting the integrity of individual choice; and(v) by promoting mediation as the primary problem-solving mechanism other than for enforcingemployment standards; and(vi) by reducing the need for judicial intervention; and(ab) to promote the effective enforcement of employmentstandards, in particular by conferring enforcement powers onLabour Inspectors, the Authority, and the court; and(b) to promote observance in New Zealand of the principlesunderlying International Labour Organisation Convention 87on Freedom of Association, and Convention 98 on the Rightto Organise and Bargain Collectively.[43] As can be seen the role of the Employment Court is forward-looking and, in aremedial sense, anticipatory. That is, the Employment Court is to act to minimisefuture employment conflict.[44] Section 187 gives the Employment Court a broad exclusive jurisdiction. Theoverall object of the Act is reflected in ss 188 and 189. Section 188 provides theEmployment Court's role in relation to this jurisdiction is to hear and determinematters within its jurisdiction and to exercise its powers. Section 189 provides thatthe Employment Court has jurisdiction to make decisions or orders as in equity andgood conscience it thinks fit.[45] Section 179 of the Act provides for challenges to determinations of theAuthority in a very particular manner: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 as ahearing de novo).[46] In our view those provisions support the conclusion that multiple challengesunder s 179 of the Act are themselves procedurally independent of each other, in a waythat appeals and cross-appeals in the general civil jurisdiction are not.[47] The issue then becomes the interdependence of the broad interest the NursesOrganisation had in the interpretation of the term retirement (as raised byMs Panettiere's personal circumstances) and Ms Panettiere's specific claim ofentitlement to a retiring gratuity. The Waikato DHB was critical ofChief Judge Colgan's description of the Nurses Organisation's challenge as being "itsown dispute", as opposed to "Ms Panettiere's own challenge". But the substance ofwhat the Chief Judge was saying was, that in the circumstances of this case, the s 179challenge by the Nurses Organisation as first plaintiff and Ms Panettiere as secondplaintiff on the question of retirement raised both a general and a particular issue. Thefirst, general issue was the meaning of the word "retirement". The second, particularissue was whether Ms Panettiere herself had retired.[48] Judge Ford did not address that general question of interpretation at all. Tothat extent he dismissed the Nurses Organisation's claim as first plaintiff withouthaving considered it.[49] As the Chief Judge correctly reasoned, the retirement interpretation issueraised issues of broad application. Not only did it affect all employers party to theNurses' Collective Agreement and their relevant employees, but it also involved theEmployment Court in considering the question of retirement, and what it means intoday's economy and in today's employment relationships, in the context of the NursesOrganisation's assertion that a "new paradigm" was required to properly analyse thatissue. Evidence before Judge Ford reflected that. As to that evidence, and itsadmissibility, Judge Ford commented:31It addressed the economics of aging and other issues relating to the concept ofretirement. I would not have excluded her evidence. The Authority's findingcentred on whether Ms Panettiere had retired upon the cessation of heremployment with the [Waikato DHB]. As it turns out, I found it unnecessaryto go down that path but, had I needed to do so, it is likely, that in anyconsideration of the relevant contextual matrix, I would have foundMs St John's evidence helpful.[50] This issue was not therefore a hypothetical one in the sense meant in Julian.Rather it had actually arisen between an individual employee and her employer and,having general significance, had been taken up by the Nurses Organisation not only inher interest, but that of relevant employees more generally.[51] Our conclusion is, therefore, that Chief Judge Colgan's decision to grant theNurses Organisation a rehearing does not reflect any error of law or principle. Ouranswer to the question of law put to us is "No".[52] We therefore dismiss the Waikato DHB's appeal against that decision.A Recall?[53] The appeal was argued before us on the issue of a rehearing.Chief Judge Colgan proceeded on the basis that the Employment Court did not have31 Substantive decision, above n 1, at [50].an express power of recall, and that recall was a procedure that, by implication,involved the original judge. In that context, we make the following observations.[54] First, it would appear that the Employment Court does have a power to recalljudgments. While there is no provision in the Act providing a power of recall,reg 6(2)(a)(ii) of the Employment Court Regulations 2000 enables theEmployment Court to have recourse to the High Court Rules where there is noapplicable procedural rule in the Employment Court. The High Court Rules include apower to recall "a judgment given orally or in writing at any time before a formalrecord of it is drawn up and sealed".32 The Employment Court has from time to timeutilised this power.33[55] Second, the failure to decide an issue is a recognised ground for recall. Theleading case is Brake v Boote.34 For applications of this sort, it is necessary todistinguish between the situation where a judge does not advert to a matter at all, andone where the judge adverts to the matter but makes an erroneous determination.35While the former situation lends itself to recall, the latter does not. We consider thatJudge Ford's judgment falls into the former category. Judge Ford explicitly stated thathe did "not find it necessary to go on to consider whether Ms Panettiere's voluntaryresignation in 2012 amounted to a 'retirement'".36[56] Third, it is not necessary for the original judge to be involved. As noted inMcGechan on Procedure, the retirement of the trial judge is not necessarily animpediment to another judge recalling the judgment.37 This principle has been adoptedin a number of cases.3832 High Court Rules 2016, r 11.9.33 Gilbert v Attorney-General [2006] ERNZ 1 at [21]; and Muldoon v Nelson Marlborough DistrictHealth Board [2011] NZEmpC 115 at [10].34 Brake v Boote (1991) 4 PRNZ 86 (HC).35 Clark v Central Lakes Homes Ltd [2016] NZHC 2164 at [10].36 Substantive decision, above n 1, at [49].37 Andrew Beck and others McGechan on Procedure (online looseleaf ed, Thomson Reuters) at[HR11.9.01(7)].38 Lewis Holdings Ltd v Steel & Tube Holdings Ltd [2016] NZHC 42 at [20]; and Healy HolmbergTrading Partnership v Grant HC Auckland CIV-2009-404-2279, 12 October 2010 at [58].[57] In our opinion, and given these three observations, we consider that it was opento Chief Judge Colgan to order a recall. That conclusion supports our decision thatthe Judge did not act incorrectly in granting a rehearing.Result[58] The appeal is dismissed.[59] The appellant must pay the respondent costs for a standard appeal on a band Abasis and usual disbursements.Solicitors:Chen Palmer, Auckland for Appellant