Foster v Wilson - [2022] NZHC 1955

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2022-463-18

[2022] NZHC 1955

BETWEEN
SIOBHAN FOSTER

Plaintiff

AND

ANDREW WILSON (ROTORUA ECONOMIC DEVELOPMENT)

First Defendant

GRAHAM BROWNRIGG (ROTORUA ECONOMIC DEVELOPMENT)

Second Defendant

Hearing: 13 July 2022

Appearances:

Plaintiff is self-represented

Fraser Wood for the First and Second Defendants

Judgment:

10 August 2022

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

This judgment was delivered by me on 10 August 2022 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules

…………………………. Registrar/Deputy Registrar

Solicitors:
Tompkins Wake (Fraser Wood), Rotorua, for the First and Second Defendants

FOSTER v WILSON [2022] NZHC 1955 [10 August 2022]

Introduction

[1] Ms Siobhán Foster was employed as a travel consultant by Rotorua Economic Development Ltd (RED), a Council-controlled organisation. She began full-time employment in this role on 30 March 2017. Her employment was terminated in January 2022 for non-compliance with RED’s COVID-19 vaccination policy.

[2] Ms Foster claims against Mr Andrew Wilson and Mr Graham Brownrigg for alleged breaches of the New Zealand Bill of Rights Act 1990, breach of contract, discrimination, coercion, threats, trespass and general unlawfulness. Mr Wilson is the CEO of RED; Mr Brownrigg is the Executive Manager of Visitor Services and Experience. Mr Brownrigg is also Ms Foster’s former team leader.

[3] The defendants say they have been erroneously joined as parties, and that the correct defendant should be RED. They also say their dealings with Ms Foster arise solely in the employment context. They have therefore filed a protest to jurisdiction challenging this Court’s jurisdiction to hear and determine the proceeding, on the basis the issues fall within the Employment Relations Authority’s (the Authority) exclusive jurisdiction.

Background

[4] In late 2021, as part of its obligations under the Health and Safety at Work Act 2015, and responding to the COVID-19 pandemic, RED formulated a COVID-19 response policy. After consultation and feedback, RED determined its employees would be safest at work if they were fully vaccinated. The RED board therefore approved a mandatory vaccination policy on 10 December 2021.

[5] Ms Foster objected to the policy. She refused to disclose her medical records and her vaccination status. RED therefore assumed Ms Foster had not been vaccinated. On 15 December 2021, Mr Wilson sent Ms Foster a letter advising she would be stood down on full pay until she received her first vaccination, or unless she received both vaccinations by Monday 17 January 2022.

[6] As Ms Foster had confirmed she did not intend to be vaccinated and was not going to comply with the policy, RED’s leadership team convened on 17 January 2022 to consider whether alternative arrangements could accommodate her. The team determined there were none, given the nature of RED’s work and Ms Foster’s role within the organisation. Accordingly, Mr Wilson gave Ms Foster four weeks’ notice of the termination of her employment.

[7] Ms Foster did not receive any vaccinations by 15 February 2022, and her…

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.

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Details

Case: [2022] NZHC 1955
Decision Date: 10 August 2022

CaseChat Overview and Summary

In the High Court of New Zealand, Siobhán Foster brought a claim against Andrew Wilson and Graham Brownrigg, both of whom were officers of Rotorua Economic Development Ltd (RED), seeking damages for alleged breaches of the New Zealand Bill of Rights Act, breach of contract, discrimination, coercion, threats, trespass, and general unlawfulness. The defendants argued that the Court lacked jurisdiction to hear the case and that they had been improperly joined as parties, asserting that the Employment Relations Authority had exclusive jurisdiction over employment relationship problems. The central issue was whether the Court had jurisdiction to determine Ms Foster's claims and whether the defendants had been correctly joined as parties.

The Court considered the nature of Ms Foster's claims and concluded that they arose from her employment relationship with RED, specifically concerning the implementation and enforcement of RED's COVID-19 vaccination policy and her subsequent termination. The Court found that regardless of whether Ms Foster's claims were framed as personal grievances or fell under the catch-all provision of the Employment Relations Act, they were within the exclusive jurisdiction of the Employment Relations Authority. The Court also noted that even if the claims were based on rights under the New Zealand Bill of Rights Act, they did not take the claims outside the purview of the Authority's jurisdiction. Consequently, the Court dismissed Ms Foster's application for want of jurisdiction.

The Court further found that Mr Wilson and Mr Brownrigg had been improperly joined as defendants and awarded costs to them on a 2B basis.

Orders