TAN v LSG SKY CHEFS NEW ZEALAND LIMITED CA216/2013 [2013] NZCA 399

TAN v LSG SKY CHEFS NEW ZEALAND LIMITED CA216/2013 [2013] NZCA 399 [27 August 2013]IN THE COURT OF APPEAL OF NEW ZEALANDCA216/2013[2013] NZCA 399BETWEEN WILLIAM TANApplicantAND LSG SKY CHEFS NEW ZEALANDLIMITEDRespondentHearing: 12 August 2013Court: White, French and Asher JJCounsel: A F Drake for ApplicantB Nicholson as AdvocateG M Pollak for RespondentJudgment: 27 August 2013 at 2.30 pmJUDGMENT OF THE COURTA The application for leave to appeal is dismissed.B The applicant must pay the respondent costs for a standard application on a band A basis plus usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by French J)Introduction[1] Mr Tan seeks leave to appeal a decision of Judge Travis in the Employment Court.1 Judge Travis found that Mr Tan was not eligible to transfer his employment1 Tan v LSG Sky Chefs New Zealand Ltd [2013] NZEmpC 35.to a new employer under subpart 1 of pt 6A of the Employment Relations Act 2000 (the Act) because his duties did not involve the provision of food catering services within the meaning of sch 1A.[2] The issue for us to determine is whether the proposed appeal involves a question of law which, by reason of its general or public importance or for any other reason, is one that ought to be submitted to this Court for decision.2Background[3] Mr Tan was employed by PRI Flight Catering Ltd as an airline equipment and supply supervisor. The Judge described his duties in the following terms (theinitials PFC referring to the employer's trading arm):3... supervising all equipment and inventory at PFC's premises and liaisingwith airlines about equipment by email to ensure a smooth supply of airline equipment at PFC at all times. The purpose of his job was to ensure that all parts of the business had the equipment in stock that was needed to provide catering to all of the different airlines with which PFC had contracts.[4] Unchallenged evidence was given that these duties included ordering tea, coffee, bonded alcohol, all rotable materials (plates, cutlery, cups and trays) and all consumable materials (plastic cups, paper napkins, condiments, aluminium foil and plastic lids for meals), as well as unloading and storing these items.[5] In 2010, PRI Flight Catering lost a major contract with Singapore Airlines to the respondent, LSG Sky Chefs New Zealand Ltd (Sky Chefs). As a result, Mr Tan was facing redundancy. PRI Flight Catering (who would otherwise have been obliged to pay Mr Tan redundancy) advised Mr Tan that he had the right under sch 1A of the Act to elect to transfer his employment to Sky Chefs. Mr Tan accordingly attempted to exercise that right. Sky Chefs, however, disputed the existence of his right to transfer and the matter went to a hearing before the Employment Court.2 Employment Relations Act 2000, s 213(3).3 At [9].[6] The relevant statutory provisions are contained in subpart 1 of pt 6A of the Act.[7] Section 69A states that the object of the subpart is to provide protection to certain categories of employees if, as a result of a proposed restructuring, their work is to be performed by another person. To this end, the subpart gives the employees a right to elect to transfer to the other person as employees on the same terms and conditions of employment.4 The categories of employees in question are listed in sch 1A. One of the specified categories is employees who "provide ... food catering services in relation to any airport facility or for the aviation sector".[8] Mr Tan's right to transfer therefore turned on whether he was an employee who provided food catering services in relation to any airport facility or for the aviation sector within the meaning of sch 1A.[9] Judge Travis said that although the case might be seen to be on the borderline, he was not persuaded that the nature of Mr Tan's role was to provide foodcatering services. Rather, the Judge considered it was to maintain equipment stores.In the Judge's view, while Mr Tan was a support worker, he was not proximate enough to the actual provision of the food services to fall within sch 1A. The real nature of his work was the stores and that was not food catering. The small amounts of tea, coffee and condiments he handled did not bring him into the schedule. Further, he was not a vulnerable worker as envisaged by the statutory criteria.[10] In reaching that conclusion, Judge Travis noted that the effect of pt 6A is to require the new employer to in effect employ strangers without any control or choice and that the intention was to provide protection for limited categories of employees providing a particular type of service.[11] Mr Tan contends that the Judge was wrong to find that his duties did not involve the provision of food catering services and wishes to appeal to this Court. In order to be able to do that he must first obtain leave under s 214 of the Act. Section 214(3) states that leave is only to be given if the proposed appeal involves a4 Employment Relations Act, s 69A(a).question of law which, by reason of its general or public importance or for any other reason, is one that ought to be submitted to this Court for decision.Grounds of proposed appeal[12] Counsel for Mr Tan contends that the case raises an important question of lawas to what is the correct test to be applied in determining whether an employee'sduties fall within the scope of sch 1A. Mr Drake submits the Judge applied too narrow a test by importing concepts of proximity and vulnerability. He furtherargues that the Judge's decision is inconsistent with two other decisions of theEmployment Court, namely Lend Lease Infrastructure Services (NZ) Ltd v Recreational Services Ltd and Matsuoka v LSG Sky Chefs New Zealand Ltd,rendering the law uncertain.5 Mr Drake points out that although this Court has had occasion to consider other aspects of pt 6A, it has never considered the issue that arises in this case before. In Mr Drake's submission, there would be considerablebenefit in obtaining a decision of this Court.Discussion[13] We accept that pt 6A affects a significant number of employees. Indeed Mr Pollock for Sky Chefs put it as high as "tens of thousands of New Zealanders".However, we are not satisfied that the proposed appeal meets the threshold for granting leave.[14] In our view, correctly analysed, this case simply involved the application of a statutory definition to a set of facts, culminating in a factual finding which is not appealable to this Court. Whether a particular employee is or is not providing services of a specified type entails an assessment of facts which will obviously differ from case to case.6 It is wrong in our view to suggest that because Judge Travis usedthe word "proximate", he was somehow purporting to apply a different "test" to thatapplied by the Court in Matsuoka. The outcomes in the two cases were different because the facts were different. In Matsuoka, the employee delivered food directly5 Lend Lease Infrastructure Services (NZ) Ltd v Recreational Services Ltd [2012] NZEmpC 86, (2012) 9 NZELR 637; Matsuoka v LSG Sky Chefs New Zealand Ltd [2011] NZEmpC 44, [2011] ERNZ 56.6 See Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721.to the airline, whereas Mr Tan did not. Lend Lease was different again because it involved a situation where the employees in question were performing what theJudge in that case termed a "blended" role, meaning they were undertaking a variety of functions, some of which came within the statutory definition at issue (provision of cleaning services) and some of which did not. It was in that context that the Judge in Lend Lease discussed the need to consider the "overall" role.[15] As for Judge Travis' reference to Mr Tan not being a vulnerable worker, we agree that if an employee is providing services within one of the specified categories, the fact he or she happens to have a substantial salary package and redundancy entitlement and is therefore not vulnerable must be irrelevant. Vulnerability is not part of the statutory definition. However, Judge Travis expressly recognised this.7At the same time he also recognised, following Service and Food Workers UnionNga Ringa Tota Inc v OCS Ltd, that subpart 1 was designed to protect categories of workers considered to be vulnerable.8 That being the underlying statutory purpose, it cannot be an error of law for the Judge to have taken it into account in rejecting anexpansive interpretation of the category. The Judge's reference to Mr Tan not being a vulnerable worker as envisaged by the criteria in sch 1A must be seen in that context.[16] We have come to the clear view that the proposed appeal does not raise a question of law. Further, because the cases are so fact specific, we do not consider that determination of this appeal would be of general benefit. The existing authorities are reconcilable.Outcome[17] The application for leave to appeal is dismissed.[18] The applicant must pay the respondent costs for a standard application on a band A basis plus usual disbursements.Solicitors:Kensington Swan, Auckland for the ApplicantGarry Pollak & Co, Auckland for the Respondent7 At [45].8 Service and Food Workers Union Nga Ringa Tota Inc v OCS Ltd [2012] NZSC 69, [2012] 3 NZLR 799.