Attorney-General v Fleming - [2022] NZCA 461

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA371/2021
[2022] NZCA 461

BETWEEN	ATTORNEY-GENERAL Appellant
AND	CHRISTINE FLEMING Respondent

Court:	Brown and Courtney JJ
Counsel:	S V McKechnie and T J Bremner for Appellant P J Dale KC for Respondent
Judgment: (On the papers)	30 September 2022 at 11.30 am

JUDGMENT OF THE COURT
[Recall]

AThe decision in Attorney-General v Fleming [2021] NZCA 510 is recalled. It is to be reissued in a form that adds to the grounds of Ms Fleming’s cross‑appeal the questions set out at [20].
B Ms Fleming is entitled to costs for a standard application on a band A basis, with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

Introduction

Christine Fleming obtained a declaration from the Employment Court that she was an employee of the Ministry of Health because she was providing full-time care for her disabled adult son, Justin, the Ministry was aware of that fact, and the work was for the Ministry’s benefit.[1] However, the Employment Court declined to impose a penalty on the Crown on the basis of the Crown’s imposition of an employment relationship between her and Justin as a pre‑requisite to its funding of Justin’s care.[2] Ms Fleming argued that this was a breach of the employment contract, which exposed the Crown to a penalty under s 134 of the Employment Relations Act 2000 (ERA).
[1]Fleming v Attorney-General [2021] NZEmpC 77, (2021) 18 NZELR 67 [Employment Court decision] at [95]–[96].
[2]At [103].
The Crown and Ms Fleming applied, respectively, for leave to appeal and cross-appeal the Employment Court’s decision. Leave was granted to both, but Ms Fleming was granted leave to cross-appeal on only one of the two questions for which she sought leave.[3] Leave was declined in respect of the following question:[4]
(b)Whether the Crown breached the ERA in a way which allows the imposition of a penalty:
(i)for the purposes of s 133 of the ERA, by breaching an employment agreement;
(ii)for the purposes of a specific provision of the ERA allowing penalties, including ss 60A, 68, 69ZD, 69ZF and 104; or
(iii)for the purposes of ss 4 and 4(a) of the ERA, whether the Crown and/or the Ministry of Health has failed to actively comply with its obligations of good faith towards the applicant and/or family carer employees since [Chamberlain v Minister of Health[5]].
[3]Attorney-General v Fleming [2021] NZCA 510 [Leave decision].
[4]At [13] and [23].
[5]Chamberlain v Minister of Health [2018] NZCA 8, [2018] 2 NZLR 771. Footnote not in original.
Leave was refused in respect of this question because this Court was not satisfied that it raised a question of law, as required by s 214(3) of the ERA.[6] Ms Fleming has applied to recall the leave decision and invites the Court to reissue it, allowing leave on this second question.
[6]Leave decision, above n3, at [20]–[21].
The limited grounds on which a decision of this Court may…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Attorney-General v Fleming

Details

AGLC: Attorney-General v Fleming [2022] NZCA 461
Case: [2022] NZCA 461
Decision Date: 30 September 2022 at 11.30 am

CaseChat Overview and Summary

In Attorney-General v Fleming, Christine Fleming sought a declaration from the Employment Court that she was an employee of the Ministry of Health due to her full-time care for her disabled son, Justin, and the Ministry's awareness of this arrangement. The Employment Court granted the declaration but declined to impose a penalty on the Crown for the imposition of an employment relationship between Ms Fleming and Justin as a prerequisite to funding his care. Ms Fleming cross-appealed against this decision, arguing that the Crown's actions constituted a breach of the employment contract, exposing the Crown to a penalty under section 134 of the Employment Relations Act 2000 (ERA). The Crown and Ms Fleming applied for leave to appeal and cross-appeal the Employment Court's decision, with leave granted to both on limited grounds. Ms Fleming subsequently applied to recall the leave decision and for leave on a second question, which was refused.

The Court of Appeal reconsidered Ms Fleming's application for recall, which was based on the Court's decision in Labour Inspector v Southern Taxis Ltd. The Court found that while Southern Taxis dealt with different provisions of the ERA, the conclusion reached in that case about the effect of a mistaken belief as to employment status on a party's liability for breach of an employment agreement had potential application to the present case. The Court recalled the leave decision and reissued it, adding the questions set out at [20] to the grounds of Ms Fleming's cross-appeal. Ms Fleming was also awarded costs for a standard application on a band A basis, with usual disbursements.

The Court of Appeal recalled the leave decision in Attorney-General v Fleming [2021] NZCA 510 and reissued it, allowing leave on the second question for cross-appeal. The Court found that the conclusion in Labour Inspector v Southern Taxis Ltd about the effect of a mistaken belief as to employment status on a party's liability for breach of an employment agreement had potential application to the present case. The Court also found that the interests of justice would be best served by considering the issue in the context of the appeal and cross-appeal, which were set down for hearing in November 2022. Ms Fleming was awarded costs for a standard application on a band A basis, with usual disbursements.

Orders