| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2011] NZERA Wellington 46 |
| Determination date | 25 March 2011 |
| Member | G J Wood |
| Representation | P McBride ; D Burton, C McGuiness |
| Location | Wellington |
| Parties | Ravnjak v Wellington International Airport Ltd |
| Summary | PRACTICE AND PROCEDURE – Application for removal to Employment Court (“EC”) – Respondent relied in part on evidence obtained from recordings from covert surveillance camera to dismiss applicant - Private investigator and security guard, who was also employee of respondent, provided witness statement concerning installation and monitoring of camera – Prior to that date applicant and Authority unaware installation and monitoring carried out by private investigator - Applicant applied to have recordings determined inadmissible, and also any evidence based on them as “fruit from the poisoned tree” – Applicant claimed recording in breach of s52(1) Private Investigators and Security Guards Act 1974 (“PISGA”) which provided that private investigators were not to make recordings of other persons without their prior written consent – Section 52(2) PISGA provided that any material taken in contravention of subsection (1) inadmissible as evidence in civil proceedings - Respondent sought removal of admissibility issue as claimed important questions of law in relation to whether could rely on recordings, whether recordings admissible, and whether any evidence seen as “fruit from the poisoned tree” could be admitted – Respondent claimed was question whether Authority’s powers under s162 Employment Relations Act 2000 could override s52 PISGA – Applicant opposed removal - Authority found while admissibility of evidence issues were ordinarily procedural, issues of whether or not Authority had power or jurisdiction to make determinations on admissibility of evidence were jurisdictional in nature - Found admissibility question in relation to whether Authority had power to over-ride s52 PISGA, and whether Authority had power in particular to decline to admit evidence that was said to be “fruit from the poisoned tree”, were jurisdictional decisions - Found arguments based on whether witness acting as private investigator at time not question of law – Found issues of alleged consent to recording by reference to employment agreement and handbook not questions of law – Found issues in respect of jurisdiction questions of law – However, found issues about whether recordings covered within scope of s52 PISGA and interpretation of s52 PISGA itself not important questions of law worthy of removal because PISGA to be repealed in following month – Found issue of “fruit from the poisoned tree” raised important question of law worthy of removal – Authority not referred to any cases where principle applied to present type of proceedings – Found impact of orders sought by applicant would make it difficult for respondent to justify dismissal and so likely to be influential on outcome - Authority found residual discretion favoured removal to EC - Found even though only one important question of law identified EC best placed to decide all issues relating to admissibility as inefficient to separate issues between Authority and EC – Found if Authority determined admissibility issue in applicant’s favour would then be delay because of desirability of another Member who had not seen recordings investigating and determining substantive matter – part of employment relationship problem dealing with admissibility of evidence to be removed to EC - Duty Manager |
| Result | Application granted ; Costs reserved |
| Main Category | Practice & Procedure |
| Statutes | ERA s162;ERA s178;ERA s178(6);ERA s179;Private Investigators and Security Guards Act 1974 s52;Private Investigators and Security Guards Act 1974 s52(2) |
| Cases Cited | Employment Relations Authority v Rawlings [2008] ERNZ 26;Hanlon v International Educational Foundation (NZ) Inc [1995] 1 ERNZ 1;Jesudhass v Just Hotel Ltd [2006] ERNZ 173;Oldco PTI (New Zealand) Ltd v Houston [2006] ERNZ 221;Rawlings v Employment Relations Authority [2006] ERNZ 729;Rose v The Order of St John [2010] ERNZ 490 |
| Number of Pages | 9 |
| PDF File Link: | 2011_NZERA_Wellington_46.pdf [pdf 43 KB] |