| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 5/01 |
| Determination date | 06 March 2001 |
| Member | D Asher |
| Representation | A Cressey ; W Smith & J Gibbs |
| Location | Wellington |
| Parties | David v A E Tilley Ltd |
| Summary | PRACTICE AND PROCEDURE - Application for removal of proceedings to Employment Court - Whether right to cross-examine unfettered - Application opposed - Jurisdiction - Not open to Court to regulate Authority procedure - No urgency |
| Abstract | This was an application for the removal of proceedings to the Employment Court from the Employment Relations Authority.;The applicant applied to the Authority to remove part of his personal grievance proceedings to the Employment Court for determination. The applicant alleged that the Authority intended to deny him his statutory rights by not allowing his representative to cross-examine the other party. The applicant claimed that that would result in a breach of natural justice. He submitted that the question of whether the parties could cross-examine in the Authority was an important question of law because the resolution would affect a large number of people, could affect the manner in which the Authority conducted its investigatory meetings, and was of major significance to constitutional law.;The respondent opposed the application on the ground that it was not open to the Court to regulate the Authority's procedure.;HELD: (1) In investigating any matter the Authority could follow any procedure it considered appropriate. Under the Employment Relations Act 2000 (the ERA) the Court had no equivalent to its function of overseeing the role of the Employment Tribunal. The ERA expressly restricted the Court from advising or directing the Authority as to the exercise of its investigatory role.;(2) The application was one that Parliament clearly intended the Court would not have jurisdiction to deal with. It would have been an improper use of a discretionary authority to refer the matter to the Court when the Court lacked proper jurisdiction to deal with the claim.;(3) The questions did not arise in the matter other than incidentally. The case was not of such a nature and of such urgency that it was in the public interest to remove it immediately to the Court.;(4) The fact that natural justice included a general right to be heard was not in issue. The legislation did not equate the right to be heard as being synonymous with the parties' right to cross-examine one another.;(5) Parliament clearly intended for the Authority to act as an investigatory body, without regard to technicalities, and to be able to set its own procedures. The parties' fundamental rights were protected by the fact that the unsuccessful party could appeal, de novo, to the Employment Court. |
| Result | Application dismissed ; No order for costs |
| Statutes | ECA s78;ECA s160;ERA s3(a)(vi);ERA s76(d);ERA s88(1);ERA s157;ERA s160;ERA s160(2);ERA s173;ERA s178;ERA s179;ERA s184;ERA s188(4) |
| Cases Cited | Jones v National Coal Board [1957] 2 All ER 155 |
| Number of Pages | 12 |
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