Diamond Laser Medispa Taupo Limited v Human Rights Review Tribunal
[2019] NZHC 2809
•31 October 2019
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2019-485-84
[2019] NZHC 2809
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER OF
An Application for Judicial Review (Certiorari and Prohibition)
BETWEEN
DIAMOND LASER MEDISPA TAUPO LIMITED
First Applicant
AND
OLIVIA JANE BLAKENEY-WILLIAMS
Second Applicant
AND
RICHARD HUGH BLAKENEY- WILLIAMS
Third Applicant
AND
THE HUMAN RIGHTS REVIEW TRIBUNAL
First Respondent
AND
ZELINDA DORIA
Second Respondent
Hearing: 12 August 2019 Appearances:
G H J Brant and K R Holland for Applicants No appearance for First Respondent
S Judd and E Tait for Second Respondent
Judgment:
31 October 2019
JUDGMENT OF GRICE J
(Judicial review application)
DIAMOND LASER MEDISPA TAUPO LIMITED v THE HUMAN RIGHTS REVIEW TRIBUNAL [2019] NZHC 2809 [31 October 2019]
Table of Contents
Para No.
Introduction [1]
The Tribunal’s decision [5]
The issues [10]
The legislation [13]
Parental Leave and Employment Protection Act [13]
The Employment Relations Act [19]
Human Rights Act [23]
Submissions [26]
Principles of interpretation [32]
Human rights instruments [39]
Pari materia [45]
No specific exclusion of rights [56]
Parts of the claim which are not a parental leave claim [62]
Second and third applicants [64]
Conclusion [67]
Costs [69]
Introduction
[1] Ms Doria was employed by Diamond Laser Medispa Taupo Ltd from January 2016 as a permanent full-time beauty therapist. On 16 November 2016 Ms Doria told Ms Blakeney-Williams, her direct manager at Diamond Laser Medispa Taupo Ltd, that she was pregnant. Ms Doria says that after that her employment conditions changed for the worse. She says she suffered discrimination in her job because of her pregnancy by not only Diamond Laser Medispa Taupo Ltd, but also by her manager, Ms Blakeney-Williams, and a director, Mr Blakeney-Williams (I refer to the applicants collectively as Medispa). Ms Doria says that in the end their behaviour forced her to resign.
[2] Ms Doria complained to the Human Rights Commission about the alleged discrimination. The Office of Human Rights Proceedings has now lodged a claim on her behalf under the Human Rights Act 1993 in the Human Rights Review Tribunal (the Tribunal). The statement of claim dated 15 March 2018 alleges discrimination against Ms Doria in the course of her employment by Medispa. She says she was forced to resign because of her pregnancy and claims damages. She also seeks damages for loss of income (including associated contributions to Kiwisaver), emotional harm, humiliation and loss of dignity as well as interest and legal expenses.
She also seeks an order that Medispa undertake Human Rights Act training at their own cost.
[3] Medispa has filed a notice of protest as to the jurisdiction of the Tribunal. It says that the Employment Relations Authority (the Authority) has exclusive jurisdiction to deal with parental leave complaints.1 For that reason, Medispa took steps to strike out Ms Doria’s claim in the Human Rights Review Tribunal. That application was unsuccessful.2
[4] Rather than appealing that decision,3 Medispa seeks judicial review of the Human Rights Review Tribunal’s decision to accept and deal with Ms Doria’s claim at all.
The Tribunal’s decision
[5] On 25 May 2018 Medispa applied to the Tribunal to have Ms Doria’s proceedings struck out.
[6] The Tribunal noted that it had a wide discretionary power to strike out proceedings before it, and that this power should be exercised in line with the High Court Rules associated with strike out.4 The Tribunal said that it was inappropriate to strike out claims summarily unless it was certain the matter could not succeed.
Further, particular care was required where the law is confused or developing.5
[7]The Tribunal outlined Medispa’s argument as follows:
(a)the Parental Leave and Employment Protection Act 1987 (the Act) deals with employer’s obligations in relation to parental leave.
(b)A parental leave complaint includes an allegation by an employee that an employer has exercised, without reasonable justification, their right
1 Employment Relations Act, s 161.
2 Doria v Diamond Laser Medispa Taupo Ltd [2018] NZHRRT 50.
3 Human Rights Act, s 123.
4 High Court Rules 2016, r 15.1; Mackrell v Universal College of Learning HC Palmerston North CIV-2005-485-802, 17 August 2005 at [48].
5 Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].
to direct the employee to commence primary carer leave.6 Similarly, actions or omissions by the employer to the disadvantage of that employee’s rights or benefits to parental leave or the termination of that employee’s employment for pregnancy related reasons also fall within a parental leave complaint.7
(c)At least some, if not all, of Ms Doria’s claims are within the definition. Her complaints of discrimination arose due to her being placed on parental leave, Medispa’s behaviour because of the pregnancy and her being forced to leave her employment.
(d)The Act specifies that such complaints may be referred to the Authority.8
(e)The Authority has exclusive jurisdiction in matters arising under the Employment Relations Act.9
[8] Ms Doria responded submitting the proceeding should not be struck out as the application relied on disputed facts and arguable legal points. She said her complaints of discrimination arose by reason of sex (pregnancy) in employment, which clearly fell within the jurisdiction of the Tribunal. She also argued that her complaint was not fully covered by the definition of “parental leave complaint” in the Act and some of the actions undertaken by Medispa because of her pregnancy were not parental leave issues. She also cited decisions where the Authority had confirmed its jurisdiction to hear a personal grievance claim where the claim could as well have been framed as a parental leave complaint.10 Ms Doria also noted a Tribunal decision saying that the Authority’s jurisdiction in employment problems should not be interpreted as encroaching on the jurisdiction of the Tribunal to hear claims for which it had jurisdiction.11
6 Parental Leave and Employment Protection Act, ss 56(1)(d), 14 and 16.
7 Section 56(1)(b)–(c).
8 Section 58(1).
9 Employment Relations Act, s 161.
10 Blaker v Mainfreight Ltd [2005] NZERA 404 at 5; Harris v Benchmark Building Supplies Ltd
[2002] NZERA 301 at 1; and Shead v TJS Farms Ltd [2010] NZERA 816 at [9].
11 Watson v Capital and Coast District Health Board [2015] NZHRRT 27.
[9] The Tribunal concluded that Ms Doria’s claim was not entirely a parental leave complaint and some of the matters that she complained of fell outside that definition. However, the matters she complained of were within the jurisdiction of the Tribunal. In addition, it said the fact that some of the matters could be parental leave complaints did not preclude the Tribunal from considering a claim which is otherwise clearly within its jurisdiction. The Tribunal declined to strike out the proceedings.
The issues
[10] Mr Brant, for Medispa, says the Tribunal does not have jurisdiction to deal with claims amounting to parental leave complaints. He says the Authority has the exclusive jurisdiction to deal with such claims. Therefore, the claim never should have been argued before the Tribunal and the decision of the Tribunal was ultra vires.
[11] Mr Brant takes no issue with the decision of the Tribunal on the strike out application except to the extent that the Tribunal heard the application at all. Otherwise, the detail of the decision was not challenged. This is not an appeal from the Tribunal decision. The central issue is whether the Tribunal has jurisdiction to determine a claim that falls within the definition of a parental leave complaint or whether the Authority has exclusive jurisdiction to deal with such a complaint.
[12]I now consider the relevant legislation.
The legislation
Parental Leave and Employment Protection Act
[13] Medispa emphasises that the purpose of the Act is to set minimum entitlements with respect to parental leave, to protect the rights of employees during pregnancy and on parental leave and to entitle certain persons to parental leave payments for set periods.12
[14] Medispa says that the Act is part of an employment law regime aimed at giving employees and employers rights and obligations to cover the impact of a birth and
12 Parental Leave and Employment Protection Act, s 1A.
pregnancy on the employment relationship. The entitlements and process by which an employee applies for parental leave, including for primary carer leave, and how the employer responds, are regulated by the Act. The Act attempts to balance the rights and obligations of parents against those of employers. The Act provides protection for an employee from dismissal by reason of pregnancy. Nevertheless, there are defences available to the employer and the right to dismiss for cause is preserved.
[15] Section 57 of the Act sets out procedures for the settlement of parental leave complaints. If the complaint does not settle “… the complaint shall be reduced to writing in a statement setting out all the facts relied on. The statement shall establish the nature of the employee’s complaint, and of the issues, for all subsequent consideration of the case.”13
[16] Only where the parental leave complaint is not disposed of using the settlement procedure in s 57 “may” the matter be referred to the Employment Relations Authority.14 The procedures for settlement “shall be” in accordance with ss 58–67 of the Act.15 Those sections deal with the reference of a parental leave complaint to the Authority.
[17] Section 58(1) of the Act specifically says that a parental leave complaint “may” be referred to the Authority when it is not disposed of between the parties. If a parental leave complaint is raised in the Authority, the provisions of the Employment Relations Act dealing with process and appeals apply.16 Interim orders and remedies are able to be made by the Authority under the Act.17
[18] No dispute resolution body is referred to in the Act other than the Authority. The Human Rights Review Tribunal is not mentioned.
13 Section 57(5).
14 Section 58(1).
15 Section 56(1).
16 Section 59.
17 Sections 55, 65 and 66.
The Employment Relations Act
[19] Section 161 of the Employment Relations Act says the Authority has “exclusive jurisdiction to make determinations about employment relationship problems generally”18. The Authority also has jurisdiction to determine other “such other powers and functions as are conferred on it by any other Act”.19 No specific reference to its jurisdiction to deal with complaints under the Act is made except to its jurisdiction to determine whether there has been compliance with a notification by the employer to the employee for approval or refusal (with reasons) of a leave application.20
[20] The Employment Relations Act defines an “employment relationship problem” as including “a personal grievance, a dispute or any other problem relating to or arising out of an employment relationship …”.21
[21] The jurisdiction of the Employment Relations Authority, therefore, Medispa says, extends to dealing with parental leave complaints. This jurisdiction is exclusive as s 161 provides22 “… except as provided in this Act no court has jurisdiction to consider the listed matters that are within the exclusive jurisdiction of the Authority”.
[22] Mr Brant says the powers and functions to deal with Parental Leave Complaints are conferred on the Authority by the Act. He says that a parental leave complaint is clearly a dispute arising from an employment relationship.
Human Rights Act
[23] The prohibited forms of discrimination are set out in s 21 of the Human Rights Act. The first is “sex”, which includes pregnancy and childbirth.23 Section 22 of Human Rights Act prohibits discrimination in employment.24
18 Employment Relations Act, s 161(1).
19 Section 161(1)(s).
20 Section 161(1)(qc); Parental Leave and Employment Protection Act, s 30D. That deals with the approval or refusal process.
21 Employment Relations Act, s 5 definition of “employment relationship problem”.
22 Section 161(3).
23 Human Rights Act, s 21(1)(a).
24 Section 21A(1).
[24] Section 79A of the Human Rights Act provides for a choice of procedures by which to pursue complaints of unlawful discrimination. It says an employee is entitled to make a complaint under the Human Rights Act or the Employment Relations Act where the facts would give rise to not only discrimination but also a personal grievance. The complainant however but must choose which path to take.25
[25] Section 92B of that Act allows a person who has made complaint of discrimination to the Commission to bring civil proceedings before the Tribunal. Section 94 confirms that the Tribunal has jurisdiction to consider and adjudicate upon such claims.
Submissions
[26] Medispa says that the Act specifically deals with parental leave complaints and sets out a mandatory process to be followed. This establishes, in its argument, a procedure requiring the complainant to pursue a complaint by raising it in the Authority which has exclusive jurisdiction to deal with it. Therefore, there is no right to choose to take the matter to the Tribunal and Authority. Medispa also points to the fact that a parental leave complaint is not a personal grievance under the Act.26
[27] Medispa further says there is no reference in the Act to the Tribunal, whereas there is a process set out for the Authority to deal with parental leave complaints. It says the wording indicates parental leave complaints must be (“shall be”) taken in accordance with ss 58 to 67 of the Act.27 Mr Brant says that while the Act has an “human rights hue” the better way to conceptualise it is as employment legislation relating to employment matters. This supports his argument that the Authority has the exclusive jurisdiction to deal with such complaints.
[28] This is reinforced, Mr Brant submits by the fact that the exclusive jurisdiction of the Authority includes dealing with employment relationship problems and making
25 Section 79A(1). To similar effect see Employment Relations Act, s 112.
26 Parental Leave and Employment Protection Act, s 56(4).
27 Section 57(1).
determinations under such “other powers and functions as conferred on it by any other Act”.28
[29] On the other hand, Mr Judd, for Ms Doria, says that the two pieces of legislation should be read in a manner that allows an employee wishing to make a parental leave complaint to choose between the Authority or the Tribunal. This is consistent with the specific provision that a complainant may choose to take a personal grievance to the Authority or to take a complaint to the Tribunal.29
[30] He notes that s 58 of the Act provides that an employee may refer a parental complaint to the Authority. It does not say that a complaint must be referred to the Authority to the exclusion of lodging a claim for discrimination to the Tribunal. As Ms Doria has not chosen the Authority pathway, it does not have exclusive jurisdiction in the matter.
[31] Ms Doria says there is no prohibition or ouster clause which prevents either the Commission or the Tribunal from dealing with her discrimination complaint. If the jurisdiction of the Tribunal was to be excluded, she says, there would need to be very clear and express words preventing the complaint from being pursued before it.
Principles of interpretation
[32]The starting point is s 5 of the Interpretation Act 1999. That provides:
5 Ascertaining meaning of legislation
(1)The meaning of an enactment must be ascertained from its text and in the light of its purpose.
(2)The matters that may be considered in ascertaining the meaning of an enactment include the indications provided in the enactment.
(3)Examples of those indications are preambles, the analysis, a table of contents, headings to Parts and sections, marginal notes, diagrams, graphics, examples and explanatory material, and the organisation and format of the enactment.
28 Employment Relations Act, s 161(1)(s).
29 Human Rights Act, s 79A.
[33] The text and purpose of other key drivers of statutory interpretation can be summarised as follows:30
[22] … The meaning of an enactment31 must be ascertained from its text and in light of its purpose. Even if the meaning of the text may appear plain in isolation of purpose, that meaning should always be cross-checked against purpose in order to observe the dual requirements of s 5. In determining purpose, the Court must obviously have regard to both the immediate and the general legislative context. Of relevance to may be the social, commercial or other objective of the enactment.
…
[24] Where, as here the meaning is not clear on the face of the legislation, the Court will regard context and purpose as essential guides to meaning. …
[34] The Court is required to attempt to reconcile any inconsistency between competing statutes insofar as possible, even if that means one of the acts is interpreted in a somewhat strained way.32 There is no presumption that one statute is superior to another all things being equal.
[35] In this case there is no prima facie presumption that s 161 of the Employment Relations Act, which sets out the Authority’s exclusive jurisdiction in various employment disputes, ousts or trumps the jurisdiction of the Tribunal established under the Human Rights Act.
[36] Of relevance to interpretation in this case are the provisions of the New Zealand Bill of Rights Act 1990. That Act requires legislation to be interpreted in a manner consistent with the rights and freedoms contained in it.33 It provides for the right of freedom from discrimination on the prohibited grounds.
[37] In the same vein, there is a presumption that parliament does not intend to legislate contrary to New Zealand’s international obligations. As the Court of Appeal stated in New Zealand Airline Pilots’ Association v Attorney-General:34
30 Commerce Commission v Fonterra Cooperative Group Ltd [2007] NZSC 36, [2007] 3 NZLR 767 per Tipping J.
31 “Enactment” means “the whole or a portion of an Act or regulations”: see Interpretation Act, s 29.
32 Ross Carter Burrows and Carter Statute Law in New Zealand (5th ed, LexisNexis, Wellington, 2015) at 22–23.
33 Section 6.
34 New Zealand Airline Pilots’ Association Inc v Attorney General [1997] 3 NZLR 269 (CA) at 289.
We begin with the presumption of statutory interpretation that so far as its wording allows legislation should be read in a way which is consistent with New Zealand’s international obligations… that presumption may apply whether or not the legislation was enacted with the purpose of implementing the relevant text… in that type of case national legislation is naturally being considered in the broader international legal context in which increasingly operates.
[38] It is an accepted rule of statutory construction that general words in an Act will not be read as to permit an intrusion into fundamental rights. Restructuring or removing fundamental rights requires clear and express words.35
Human rights instruments
[39] A number of international instruments were given effect to in the Act and in the Human Rights Act. In relation to discrimination on the grounds of sex, (including pregnancy) of particular relevance is the Convention on The Elimination Of All Forms Of Discrimination Against Women, (CEDAW) which was adopted by the United Nations General Assembly on 18 December 1979 and came into force as an international treaty on 3 September 1981.36 It was ratified by New Zealand in 1985. That convention at art 2 provides:
Article 2
States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake:
…
(b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women;
(c) To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination;
..
(e) To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise;
…..
35 R v Secretary of the State for the Home Department [1999] UKHL 33, [2000] 2 AC 115 at 131.
36 Convention on the elimination of all forms of discrimination against women 1249 UNTS 13 (opened for signature 1 March 1980, entered into force 3 September 1981).
[40] Article 11 deals with the issue of discrimination the field of employment, including pregnancy-related protections:
Article 11
1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular:
(a)The right to work as an inalienable right of all human beings;
(b)The right to the same employment opportunities…;
(c)The right to free choice of profession and employment…;
(d)The right to equal remuneration…;
(e)The right to social security…;
(f) The right to protection of health and to safety in working conditions….
2. In order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work, States Parties shall take appropriate measures:
(a) To prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of maternity leave and discrimination in dismissals on the basis of marital status;
(b) To introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances;
(c) To encourage the provision of the necessary supporting social services to enable parents to combine family obligations with work responsibilities…;
(d) To provide special protection to women during pregnancy in types of work proved to be harmful to them.
[41] The fundamental rights appear as prohibited grounds of discrimination under s 21 of the Human Rights Act.37 As I have already noted, that Act provides for a wide range of prohibited discrimination including by reason of sex including pregnancy and child birth and for discrimination in employment.38
[42] In this case the issue is not directly about fundamental rights but about access to procedures to enforce them. In the context of New Zealand’s international
37 Human Rights Act, ss 21(1)(a)–(b).
38 Section 21(1)(a).
obligations, the Human Rights Commission and the Tribunal are the specialist bodies with special expertise and experience in human rights and discrimination issues.
[43] The processes under the Human Rights Act including the ability to take civil proceedings to the Tribunal are designed to enable vulnerable persons to pursue claims of unlawful discrimination to a Tribunal specifically equipped to deal with those issues with specialist expertise in the area.
[44] Rights and entitlements under the Act were intended to better protect employees’ human rights in certain circumstances related to pregnancy and child birth. The predecessor to the Act was the Maternity Leave and Employment Protection Act 1980 which prescribed minimum requirements for maternity leave and protected the rights of female employees both during pregnancy and maternity leave. In 1987 that legislation was replaced by the Act which provided more comprehensive entitlements including minimum entitlements to parental leave for parents, for male and female employees, protecting the rights of employees during pregnancy and parental leave and entitling certain persons up to 22 weeks of parental leave. It also prohibited termination of employment by reason of pregnancy or the employee’s state of health during pregnancy.
Pari materia
[45] Mr Brant submitted that the Act is part of a group of statutes which deal with the same or related subject matter and the statutes should be interpreted pari materia and construed together. A construction pari materia may be of assistance where there are a number of pieces of legislation statutes which are part of a comprehensive statutory scheme. The statutes will usually be expressly linked or if not, the Court in any event might be assisted in the interpretation of one of them by reference to it forming part of the scheme.
[46] In this case the construction might be applied to support an interpretation that the Authority has exclusive jurisdiction to determine parental leave complaints although that exclusivity is not expressly referred to in the Act. As the Employment Relations Act specifies the Authority has exclusive jurisdiction to determine various
employment matters (including those “other powers and functions conferred” by another Act”).39
[47] However, I consider the pari materia principle is of limited assistance in this case. Here there are three pieces of relevant legislation which fall to be interpreted. They have different purposes. It is a matter of construing them each to make the three work together consistently rather than prefer one over the other if that can be avoided.
[48] Mr Brant further argues that a parental leave complaint is not a personal grievance within the meaning of the relevant provisions of the Employment Relations Act.40 He notes the Human Rights Act expressly refers to an option of pursuing either a personal grievance or taking a complaint to the Commission, but does not refer to choice in the case of a parental leave complaint in the same way. He says it follows there is no choice to bring a parental leave complaint in the Tribunal.
[49] Mr Brant also says that it is arguable that technically actions which give rise to a parental leave complaint may not be categorised as discrimination at law. This is because the only way a claim of discrimination can be brought to the Authority is as a personal grievance. Therefore, as a parental leave complaint cannot be taken as a personal grievance it could be said that the complaint cannot amount to discrimination at law. This submission was not the main thrust of Mr Brant’s submission and I do not consider it takes matters further.
[50] The section of the Act that provides a parental leave complaint is “not a personal grievance” seems intended to avoid confusion between the two procedures.41 An explanation is that the legislature did not want the legal definitions, timeframes and formalities associated with a personal grievance procedure to be applied to a parental leave complaint.42
[51] There are a number differences between the parental leave complaint and the personal grievance procedure. There is a less formal process for making a parental
39 Employment Relations Act, s 161(1)(s).
40 Parental Leave and Employment Protection Act, s 56(4).
41 Section 56(4).
42 A personal grievance is subject to the defence of justification: Employment Relations Act, s 103A.
leave complaint than for a personal grievance. A personal grievance can generally only be taken against an employer within 90 days43 whereas an employee has 26 weeks to make a parental leave complaint.44 The more generous timeframe is no doubt to better accommodate the special circumstances and particular vulnerability of a parental leave complaint. In this case Ms Doria has not lodged a claim in the Authority and is well out of time for doing so without leave.
[52] A further reason for a parental leave complaint not being treated as a personal grievance is that the legislature may not have wanted to limit an employee’s choice as to whether to take a parental leave complaint to the Authority or a claim for discrimination on the same or similar grounds to the Tribunal. The employee, therefore, could choose or even initiate both processes. This may be advantageous where the facts giving rise to a complaint of discrimination lodged with the Tribunal are wider than those relevant to a personal leave complaint. Ms Doria alleges that is the case here.
[53] The Commission may decide not to proceed with hearing a claim if there is in all the circumstances an adequate remedy that it would be reasonable for the complainant to exercise.45 This might include the fact a claim is raised in the Authority.
[54] The Employment Court has dealt with claims of personal grievance where the actions of an employer could give rise to a parental leave complaint. It has not differentiated between the two procedures but has seen them as options. However, the Court has not expressly grappled with the effect of s 56(4) of the Act.46 The Employment Court, nevertheless, has emphasised that a proactive approach should be taken in protecting parental leave and related employment protection rights.47
43 Section 114(1).
44 Parental Leave and Employment Protection Act, s 56(2).
45 Human Rights Act, s 80(3)(d).
46 Blaker v Mainfreight Ltd, above n 10, at [2]; Harris v Benchmark Building Supplies Ltd, above n 10, at 1; Shead v TJS Farms Ltd, above n 10, at [9]; Lock v HL Group Ltd [2014] NZERA 83 at [42]–[45].
47 Denley v Service Workers Union of Aotearoa Inc [1994] 1 ERNZ 863 see generally Mazengarb’s Employment Law (online looseleaf ed, LexisNexis) at [3356.12].
[55] An interpretation that seeks to protect employees’ rights would allow complainants to choose whether to raise a parental leave complaint in the Authority or pursue it in the Tribunal.48
No specific exclusion of rights
[56] None of the relevant legislation specifically excludes the right of an employee to take a claim to the Tribunal based on discriminatory acts or omissions where the discrimination could give rise to a parental leave claim.
[57]The purpose of the Act includes:49
(b) to protect the rights of employees during pregnancy and parental leave
…
[58] Given that purpose and the fundamental human rights which are intended to be protected by the Act, in my view it would need a clear provision to prevent an employee with grounds for a claim of discrimination on the basis of pregnancy from pursuing that claim under Human Rights Act to the specialist Tribunal.
[59] In my view Ms Doria had a choice whether or not to use the procedure under s 58 of the Act. That is made clear by the words “may use”50 and “may”.51 She has chosen not to raise the claim in the Authority. There is no impediment to her pursuing a claim before the Tribunal. Such a prohibition would require clear and express words. There are none here.
[60] Further points that support an interpretation that allows Ms Doria to pursue her claim for unlawful discrimination in the Tribunal are:
(a)Section 161(1)(qc) of the Employment Relations Act specifically provides that the Employment Relations Authority has exclusive jurisdiction to determine whether an employer has complied with a
48 The analogy was given of Fox v Hereworth School Trust Board [2015] NZEmpC 206 where a successful personal grievance was pursued after the employer dismissed the employee for alleged misconduct whilst she was on unpaid parental leave.
49 Parental Leave and Employment Protection Act , s 1A.
50 Sections 56(1) and 58(1).
51 Section 58(1).
request for negotiated carer leave.52 That is the only express reference to the Act in the Authority’s exclusive jurisdiction provision. This suggests that the Human Rights Act procedures for dealing with discrimination are an option for other claims under the Act.
(b)Section 161 (exclusive jurisdiction) of the Employment Relations Act is not referred to in the provisions under the Act dealing with the parental leave complaint process. In comparison other provisions of the Employment Relations Act are specifically referred to, such as s 59 which deals with procedural matters and the appellate pathway under the Employment Relations Act 2000.
(c)Ms Doria alleges that a number of actions by Medispa amounting to unlawful discrimination related to her pregnancy are outside the ambit of a parental leave complaint. She would have to split the claim between the Authority and the Tribunal if she was restricted to raising the parental leave claim in the Authority.
(d)Bringing a claim in the Tribunal may be more advantageous for an employee than raising a parental leave complaint in the Authority. In addition to the matters I referred to earlier an example is that the Commission will bring civil proceedings on Ms Doria’s behalf before the Tribunal.53 In the employment jurisdiction, a union representative might assist but if Ms Doria wished to employ a lawyer she would need to pay for it.54 The time limit for bringing a claim before the Authority is much shorter than the time limit for lodging a claim under the Human Rights Act.55
52 Made under s 30D of the Parental Leave and Employment Protection Act.
53 Human Rights Act, s 92B(1)(c).
54 Legal Aid may be available but even if it were it would likely result in a charge against Ms Doria’s property or recoveries.
55 Human Rights Act, ss 92B and 92; Employment Relations Act, s 114 as an example.
(e)Ms Doria could not bring a claim against the second and third applicants in the Employment Relations Authority. She is limited in that jurisdiction to a claim against the first applicant as her employer.56
(f)Other statutes such as the Immigration Act 2009, have express clauses excluding the application of the provisions of the Human Rights Act.57 No such provision is found in the Act.
[61] I conclude Ms Doria may pursue a claim in the Tribunal. The Tribunal correctly dismissed the application to strike out. The decision was not ultra vires.
Parts of the claim which are not a parental leave claim
[62] Mr Brant indicated that he did not challenge the determination of the Tribunal in relation to its decision on the strike out except as to its jurisdiction to embark on the application at all. However, Medispa did submit, as an alternative argument, that the Tribunal should have only struck out those parts of the claim which amounted to a parental leave complaint. This alternative submission recognises there may be parts of the claim that are not caught by the definition of a parental leave claim.
[63] I have found there is no reviewable error in relation to the decision of the Tribunal not to strikeout the proceeding and there has not been an appeal lodged in relation to that decision. An argument based on failure to strike out parts of the claim would be a matter for appeal. In any event, the Tribunal is the best body to make that determination once it hears the evidence.
Second and third applicants
[64] Mr Brant also argued that if Ms Doria was required to bring her parental leave claims in the Authority, the claims against the second and third applicants would fall away. That is because they cannot be liable as employers. Only an employer can be found liable by the Authority. Mr Brant noted there might be some exceptions to this
56 Section 68 of the Human Rights Act provides for the liability of an employer and principals or agents of the employer.
57 Part 10.
related to insolvency, but for the purposes of this argument he submitted that based on the general principles of agency, the second and third applicants could not be liable.
[65] As I have already concluded that Ms Doria is entitled to pursue claims of unlawful discrimination by reason of her pregnancy using the procedures under the Human Rights Act by way of proceedings in the Human Rights Review Tribunal, I do not need to consider the position of the second and third applicants any further.
[66] The Human Rights Act allows a claim to be brought against all persons who may have been responsible for the unlawful discrimination, not just the employer.58
Conclusion
[67] Ms Doria is not prevented from bringing her claim for unlawful discrimination by reason of her pregnancy in the Tribunal. The Tribunal made no error in refusing to strikeout the proceeding.
[68]The application for judicial review is dismissed.
Costs
[69]If counsel are unable to agree on costs, memoranda shall be filed as follows:
(a)By the second respondent on or before 10 days from the date of this decision.
(b)By the applicants within a further seven days.
(c)By the second respondent in reply within a further three days.
58 Human Rights Act, ss 21–35.
[70] I note Mr Brant raised the issue of whether Ms Doria was entitled to costs because her legal representation was funded by the Commission. I invite counsel to make submissions on that matter specifically.
Grice J
Solicitors:
Stace Hammond, Lawyers, Hamilton
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