| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 132/06 |
| Determination date | 20 April 2006 |
| Member | R Arthur |
| Representation | B Corkill ; K Jones, M Beech |
| Location | Auckland |
| Parties | Y v Bay of Plenty District Health Board |
| Summary | PRACTICE AND PROCEDURE - Application by respondent to remove matter to Employment Court - Applicant dismissed by respondent following investigation of complaint about his management of patient who died while under applicant's care - Respondent sought removal on basis of s178(2)(d) Employment Relations Act 2000 (ERA") - Parties agreed removal not warranted under s178(2)(a)-(c) ERA - Alleged in public interest to remove matter to Court because how respondent inquired into and dealt with complaint about patient death had wide, potential effect on how consumers of its services and wider public saw its services - Not a factor favouring removal in this case - Other public interests to consider such as that ERA did not allow for "forum shopping" - Authority did not accept likely media attention was a factor favouring removal - Statutory power of Authority relating to non-publication of evidence and names was same as that of the Court - Likelihood of challenge to Authority's determination was, at best, a weak factor in this case - Respondent did not identify any important questions of law - Alleged that in this case expert evidence required extensive and robust cross-examination by counsel in Court rather than by Authority's inquisitorial process - Submission misconceived nature of proceedings in Authority and Court - Almost invariably there was opportunity in Authority for representatives of both parties to ask additional questions of witnesses - Alleged particular discovery required in this case including material from hospital files - While Employment Court Regulations 2000 provided regime for mutual disclosure and inspection there should be no difficulty in securing necessary documents for investigation in Authority - Possible challenges to admissibility of certain evidence was not a factor favouring removal - Respondent's intention to seek strike out of remedy of reinstatement also not a factor favouring removal - Alleged "chronic delay" in applicant's prosecution of claim - Claim filed within statutory period and case law prior to enactment of statutory period about effect of delay was no longer directly relevant to claims filed within express statutory timeframe - Applicant supported removal to Court but that not of itself decisive - Not parties' shared view but reasons for shared view that were relevant - Not persuaded that case as complex as suggested by parties - Authority not of opinion that in all circumstances Court should determine matter - Application for removal declined - Non-publication order in respect of applicant's name, former position, other details which might identify part of respondent's services where applicant worked, and any information which could identify patient or patient's family - Order on an interim basis until start of Authority's investigation meeting" |
| Result | Application dismissed ; Orders accordingly ; No order for costs |
| Statutes | ERA s114(6);ERA s143(f);ERA s143(fa);ERA s157(2A);ERA s160(1);ERA s160(1)(c);ERA s160(2);ERA s178;ERA s178(2)(a);ERA s178(2)(b);ERA s178(2)(d);ERA s178(3);ERA s189(2);ERA Second Schedule cl5;ERA Second Schedule cl10 |
| Cases Cited | Auckland District Health Board v X [2005] 1 ERNZ 551;Centre for Advanced Medicine Ltd v Sprott unreported, Shaw J, 10 May 2005, AC 20/05;Chief Executive of the Ministry of Maori Development v Travers-Jones [2003] 1 ERNZ 174;David v Employment Relations Authority [2001] ERNZ 354 ; (2001) 6 HRNZ 636;Oldco PTI (New Zealand) Ltd v Houston [2006] ERNZ 221;Rigby v Coast Health Care Ltd unreported, DS Miller, 14 April 1994, CT 69/94;The Clerk of the House of Representatives v Witcombe [2006] ERNZ 196 |
| Number of Pages | 10 |
| PDF File Link: | aa 132_06.pdf [pdf 63 KB] |