Appleyard v Corelogic NZ Limited

[2020] NZCA 572

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA464/2020
 [2020] NZCA 572

BETWEEN	DAVID APPLEYARD Applicant
AND	CORELOGIC NZ LIMITED Respondent

Court:	French and Clifford JJ
Counsel:	S R Mitchell for Applicant J M Lapthorne for Respondent
Judgment: (On the papers)	18 November 2020 at 9 am

JUDGMENT OF THE COURT

AThe application for leave to appeal under s 214 of the Employment Relations Act 2000 is declined.

BThe applicant must pay the respondent costs on a standard application on a Band A basis with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

1. Mr Appleyard seeks leave under s 214 of the Employment Relations Act 2000 (the Act) to appeal a decision of Judge Perkins in the Employment Court.[1]  

   [1]Appleyard v Corelogic NZ Ltd [2020] NZEmpC 107, (2020) 17 NZELR 511 [Employment Court decision].

2. In the decision the Judge held that the termination of Mr Appleyard’s employment during a 90 day trial period had been on notice and therefore was in accordance with s 67B(1) of the Act.  That in turn meant under s 67B(2) that Mr Appleyard was unable to bring a personal grievance of unjustifiable dismissal.

Background

1. The case was decided in the Employment Court on the papers on the basis of an agreed statement of facts and relevant documentation. 

2. The key facts were that the parties had signed a written employment agreement.  It was expressed to be subject to a trial period of 90 days.  The agreement also contained a clause empowering the respondent employer to terminate the agreement during the trial period by providing Mr Appleyard with one week’s notice of termination in writing.  The agreement further provided:

   3.6      The Employer may, at its discretion, pay the Employee in lieu of working some or all of this notice period.  In addition to, or as an alternative to, paying the Employee in lieu of working some or all of the Employee’s notice period, the Employer may require the Employee to not attend the workplace during some or all of the notice period, but to continue to be employed by the Employer.

3. Mr Appleyard commenced his employment with the respondent on 13 May 2019.  On 28 June 2019, he was called to a meeting where he was given a letter which was read out to him:

   …

   Dear David,

   Re: Termination of Employment (within Trial Period)

   As detailed in your Individual Employment Agreement, dated 1 May 2019, your employment is subject to a 90 day trial period, outlined in clause 3, "Trial Period", of that agreement.

   CoreLogic has made the decision to terminate your employment within your trial period.

   This letter serves as notice of termination of your employment, effective today, and you will be paid in lieu of your one week notice period.

We wish you all the best for your future endeavours.

…

1. Payment of Mr Appleyard’s final pay including payment in lieu of his notice period was made on 19 July 2019.

2. Mr Appleyard then submitted a personal grievance.  He accepted the trial period provided for in the agreement was valid but contended his employment had not been terminated on notice in accordance with the agreement and as required under s 67B of the Act.  That contention was rejected by the Employment Relations Authority[2] and again in the Employment Court.

   [2]Appleyard v Corelogic NZ Ltd [2020] NZERA 92.

3. In the Employment Court, the outcome turned on the construction of the letter. Counsel for Mr Appleyard submitted that the use of the words “effective today” meant the period of notice of one week required by the agreement was not given.  The notice was immediate, Mr Appleyard did not continue in employment from that time and no later date for his employment to end was contained in the letter.

4. In rejecting those submissions, the Judge said the only conclusion he could reach as to the words used in the letter as a matter of common sense, natural meaning and purpose was that the employer was giving Mr Appleyard one week’s notice of termination.[3]  The words “effective today” were, the Judge held, to convey that Mr Appleyard was not required to continue working for the period of notice and would receive payment in lieu.  It was not a payment in lieu of notice but payment in lieu of his being required to work out the period of notice and earn wages.

   [3]Employment Court decision, above n 1, at [15].

5. It followed, in accordance with the decision of this Court in Ioan v Scott Technology Ltd,[4] that the termination was not a summary dismissal and the claim must fail.

The application for leave to leave

[4]Ioan v Scott Technology NZ Ltd [2019] NZCA 386, (2019) 17 NZELR 255.

1. The right of appeal to this Court is limited to appeals on questions of law and is subject to a leave requirement.  Under s 214(3) of the Act, leave may be granted if in the opinion of this Court, the proposed question of law is one that by reason of its general or public importance or for any other reason ought to be submitted for determination.

2. The proposed questions of law are:

   (a)Whether the factual findings made by the Employment Court were open to it taking into account all the evidence?

   (b)Whether the employer was entitled to rely on the provisions of s 67B(2)?

3. The “factual findings” which the first question is intended to encompass relate to the Judge’s interpretation of the letter.  It is argued that the “factual findings” made by the Judge as to the letter’s meaning “is not a possible interpretation of the letter” and are entirely inconsistent with it.  Accordingly, so the argument runs, the findings fall within the admittedly rare category of case where a factual finding is so untenable and without evidential foundation that it amounts to an error of law.

4. It is also contended that if the answer to question one is that the Judge wrongly found the termination was on notice, then question two raises a different question of law to that considered by this Court in Ioan.

Our view

1. In our view the application fails to meet the threshold required under s 214 before leave to appeal may be granted.

2. The interpretation of the letter is entirely case-specific and not a question of general or public importance.  Furthermore, it is without merit.  The interpretation adopted by the Judge was plainly open to him as a matter of language.  Further, the agreed statement of facts did not provide any factual context which would undermine the Judge’s interpretation.

3. The legal effect of a payment in lieu of notice in the context of trial periods under s 67B has already been considered by this Court as recently as 2019 in the decision relied upon by the Judge.  Correctly analysed, the present case does not raise any new legal issue.

4. The application for leave to appeal is accordingly declined.

5. The application having failed, the applicant must pay the respondent costs on a standard application on a Band A basis with usual disbursements.

Solicitors:
Garry Pollak & Co, Auckland for Applicant
Duncan Cotterill, Auckland for Respondent