| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 185/10 |
| Determination date | 17 September 2010 |
| Member | J Crichton |
| Representation | A Irving ; B Dorking |
| Location | Christchurch |
| Parties | O'Neill v The Vice Chancellor University of Otago |
| Summary | PRACTICE AND PROCEDURE - Application to reopen investigation - Respondent sought to reopen investigation on grounds of lack of jurisdiction, breach of natural justice, and contradictory findings of fact - Applicant opposed application on all grounds and claimed no miscarriage of justice if original determination stood, whereas would be if investigation reopened - Respondent claimed Authority lacked jurisdiction to make determination did - Authority relied on s122 Employment Relations Act 2000 (“ERA”) to find unjustified disadvantage grievance when applicant had only claimed constructive dismissal - Respondent claimed Authority acted ultra vires because s122 ERA only gave Authority power to change label on grievance not to import entirely new grievance which had not been pleaded - Respondent claimed facts of grievance must be before Authority however grievance actually labelled - Claimed Authority could not, in reliance on s122 ERA, infer grievance from facts which emerged from investigation - Respondent claimed Authority made unjustified disadvantage finding based on applicant’s manager’s alleged failure to pass on medical certificate to human resources manager - Authority found that was not basis of Authority’s finding - Found Authority had jurisdiction - Respondent claimed Authority breached natural justice in way conducted investigation - Claimed effect of obligation to comply with principles of natural justice that Authority put adverse findings to relevant party and give them opportunity to present evidence or submissions on point - Authority found difficulty in assessing submission as no written transcript of investigation meeting, Authority member retired, and parties had different recollections of what happened - However, found on balance of probabilities more rather than less likely respondent knew could be adverse findings against it - Found no breach of natural justice - Respondent claimed Authority made contradictory findings of fact - Authority found claim seemed to be based on respondent’s misunderstanding of reason for decision - Authority satisfied conclusions Authority reached supported by evidence and reasoning for conclusions properly identified in determination - Authority found grounds claimed for reopening claimed not made out - Found as Authority Member who made original decision retired impossible for Authority to reconsider matter in way normally would - Found in those circumstances reopening matter would in effect be rehearing - Found Authority loathe to offer what amounted to partial rehearing when parties could have applied for de novo challenge in Employment Court - Found also was very significant delay between investigation meeting and determination and so reopening would create further delay - Found reopening matter inappropriate and affront to public policy - Application to reopen investigation declined |
| Result | Application dismissed ; Costs reserved |
| Main Category | Practice & Procedure |
| Statutes | ERA s122;ERA s157(2)(a);ERA Second Schedule cl4 |
| Cases Cited | O'Neill v The Vice Chancellor University of Otago unreported, P Montgomery, 12 May 2010, CA 119/10 |
| Number of Pages | 7 |
| PDF File Link: | ca 185_10.pdf [pdf 28 KB] |