WAIKATO DISTRICT HEALTH BOARD V WENDY ANNE CLEAR CA CA14/2009

WAIKATO DISTRICT HEALTH BOARD V WENDY ANNE CLEAR CA CA14/2009 2 April 2009IN THE COURT OF APPEAL OF NEW ZEALAND CA14/2009 [2009] NZCA 112BETWEEN WAIKATO DISTRICT HEALTH BOARD Applicant AND WENDY ANNE CLEAR Respondent Hearing: 17 March 2009 Court: O'Regan, Arnold and Ellen France JJ Counsel: G D Bevan for Applicant M J Hammond and P J Dawson for Respondent Judgment: 2 April 2009 at 2.30 pmJUDGMENT OF THE COURT A The application for leave is granted with respect to the following questions: (a) Did the Employment Court err in law by imposing on the applicant a duty to undertake a full and fair investigation into the complaints made to it by the respondent? (b) Did the Employment Court err in law in holding the applicant liable for breaches that were not raised before the Authority within the limitation period in s 114(6) of the Employment Relations Act 2000? B The application is otherwise declined. C No order for costs.REASONS OF THE COURT(Given by Ellen France J)Introduction[1] This is an application for leave to appeal against a judgment of Judge Shaw in the Employment Court in which the Judge upheld the respondent's claim of unjustifiable dismissal and disadvantage: EmpC AK AC49/08, ARC 37/07 15 December 2008. [2] Leave to appeal may be granted only if, in this Court's opinion, a question of law involved in the proposed appeal, by reason of its general or public importance or for any other reason, ought to be submitted to this Court: s 214(3) of the Employment Relations Act 2000. [3] Leave to appeal was sought on a number of grounds. We are satisfied that the test in s 214 is met in relation to two of those grounds. The first of these is whether the Employment Court erred in law by imposing on the applicant a duty to undertake a full and fair investigation into the complaints made to it by the respondent. The second ground is whether the Employment Court erred in law in holding the applicant liable for breaches that were not raised before the Authority within the limitation period in s 114(6) of the Employment Relations Act. [4] In terms of the first ground, we add that it is not entirely clear that the Judge has dealt with the matter in such broad terms in her analysis. However, that is the way in which the test is expressed at [12] of the judgment and for these purposes we have had to assume that is the test that has been applied. [5] We now set out, in brief, the factual background and our reasons for declining leave with respect to the other proposed grounds.Factual background[6] The respondent, Wendy Clear, was employed by the applicant as a midwife in a hospital maternity ward. She was dismissed from her employment with effect from 22 January 2005. [7] In late 2005, Ms Clear brought proceedings for unjustified dismissal and disadvantage. The proceedings focused on the way in which the applicant had dealt with four complaints made by Ms Clear over a three year period from 2000. A consistent theme of the complaints was that the respondent had been bullied by her unit manager and, as a result, her work place was unsafe. The respondent's health deteriorated to the extent that from about 10 to 11 September 2003 she ceased working. [8] The Employment Relations Authority upheld Ms Clear's disadvantage grievance in relation to the fourth of her complaints but otherwise found for the applicant. The respondent's challenge in the Employment Court was successful.The other proposed grounds of appeal[9] In terms of the duty imposed on it, the applicant also sought to have this Court consider whether the Employment Court erred in law by finding that the applicant breached "its duty to provide [the respondent] with safe working conditions". We do not see this question as adding anything to the question relating to the duty to investigate for which leave has been granted. [10] The applicant then sought to raise a number of questions about the nature of the test to be applied before the applicant could be held liable for the respondent's illness. Those questions would have the Court address the extent to which the Employment Court had to identify various factors. These factors include whether the respondent's work environment was actually unsafe (due to bullying behaviour); and if it was unsafe, whether the applicant's actions and responses (or lack thereof) amounted to a breach of duty which, in turn, caused reasonably foreseeable harm to the respondent.[11] Again, we see these questions as part and parcel of the earlier inquiry into the obligation on the respondent to conduct a full and fair investigation. [12] The applicant also sought leave to appeal against a number of alleged factual errors. We are satisfied that none of these matters gives rise to any error of law on the part of the Employment Court. The objection is essentially to the weight or emphasis placed on certain factors by the Judge. These sorts of matters do not meet the test in s 214. [13] The applicant's next proposed question would have the Court address whether "the above errors of law render unsafe the Employment Court's finding of unjustified dismissal". This is simply a catchall and adds nothing. [14] Finally, there is a proposed question in these terms:If the Employment Court upheld the third alleged breach of duty (paragraph 124) [relating to Ms Clear's return to work], did it make an error of law, on the basis that a finding of breach is inconsistent with the Court's factual finding that the applicant did all it could short of arranging for [the unit manager] to not be at the unit.[15] It is not at all clear that there is any inconsistency in Judge Shaw's reasoning on this point. In any event, this question does not give rise to a question of law.Costs[16] Given that both parties have had a measure of success, we make no order for costs.Solicitors: Chapman Tripp, Auckland for Applicant Tompkins Wake, Hamilton for Respondent