Hardie v Round - [2009] NZCA 421

IN THE COURT OF APPEAL OF NEW ZEALAND
CA220/2008
[2009] NZCA 421
BETWEENJOHN DAVID HARDIE

Appellant

ANDMARTIN CHARLES ROUND

Respondent

Hearing:17 September 2009

Court:Hammond, Harrison and Miller JJ
Counsel:Appellant in person

C P Blake for Respondent

Judgment:21 September 2009 at 11 am

JUDGMENT OF THE COURT

A The appeal is dismissed.
BThe respondent will have indemnity costs and usual disbursements. The process for fixing the indemnity costs is set out in [28] of the reasons for judgment.

REASONS OF THE COURT
(Given by Hammond J)
Introduction
[1]       Dr Round was dismissed summarily by Mr Hardie in August 1999. At that time the Employment Contracts Act 1991 (“ECA”) was still in force. Mr Hardie now appeals to this Court from the decision of the Employment Court, which determined that the dismissal was unjustified: (2008) 8 NZELC 99,315. Under the ECA he does not need leave to appeal.
Dr Round is dismissed
[2]       Dr Round was a newly-qualified lawyer who obtained employment with Mr Hardie in his intellectual property practice. He was paid by the hour and his timesheets were the basis of the remuneration paid to him. There was no written employment contract.
[3]       In July 1999, Mr Hardie received second-hand information that Dr Round was falsifying his timesheets. Mr Hardie gave a senior staff member, Mrs Burgess, the task of monitoring and comparing Dr Round’s hours with his timesheets. Mr Hardie also kept a record to compare with that of Mrs Burgess. These observations occurred on ten dates, and were not disclosed to Dr Round.
[4]       At 5:30 pm on 13 August 1999, after other staff members had left for the day, Dr Round was called to a meeting with Mr Hardie and Mrs Burgess. At the meeting, Mr Hardie told Dr Round that there were discrepancies between his “observed” hours and his recorded hours, and that he was to be dismissed summarily unless he could produce “some earth-shattering revelation of why his recorded hours did not match his observed hours”. Dr Round was neither given the records nor was he given the chance to have a representative with him. He was given a letter of dismissal and escorted from the building.
[5]       Dr Round brought proceedings before the Employment Tribunal claiming unjustified dismissal under the ECA.
[6]       The Employment Tribunal determined that this dismissal was unjustified and directed Mr Hardie to pay lost wages, compensation for distress and costs.
The Employment Court appeal
[7]       Mr Hardie appealed to the Employment Court. After various interlocutory judgments and appeals from them over the course of seven years, the Employment Court heard Mr Hardie’s appeal against the Tribunal’s substantive and costs decisions.
[8]       In the Employment Court, Mr Hardie claimed that the Employment Tribunal had substituted its own decision for that of the employer. He claimed that his dismissal of Dr Round was justifiable and that he had carried out a full and fair investigation into his allegation of misconduct of Dr Round before dismissing him.
[9]       Chief Judge Colgan rejected Mr…

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 Hardie v Round

Details

AGLC: Hardie v Round [2009] NZCA 421
Case: [2009] NZCA 421
Decision Date: 21 September 2009

CaseChat Overview and Summary

In the case of Hardie v Round, the Court of Appeal of New Zealand was called upon to consider an appeal by the appellant, Mr Hardie, against the decision of the Employment Court, which had upheld the determination of the Employment Tribunal that the dismissal of the respondent, Dr Round, was unjustified. The primary legal issue the Court had to decide was whether the Employment Court had erred in law in upholding the Tribunal's decision that Mr Hardie's dismissal of Dr Round was unjustified. The Court also had to determine whether the remedies awarded by the Employment Tribunal and the Employment Court, as well as the costs awarded, were reasonable exercises of their respective discretions.

The Court of Appeal held that Mr Hardie's appeal was limited to questions of law, and that he had failed to identify any such question. The Court noted that Mr Hardie's submissions were more akin to a critique of the factual findings made by the lower courts, rather than an argument based on legal principles. The Court found that Mr Hardie's dismissal of Dr Round was procedurally and substantively flawed, and that the Employment Court had not erred in upholding the findings of the Employment Tribunal. The Court also found that the remedies and costs awarded by the lower courts were reasonable exercises of their discretion.

The Court of Appeal dismissed the appeal and ordered Mr Hardie to pay indemnity costs to the respondent. The Court held that Mr Hardie, as a qualified lawyer, should have been aware of the limited scope of the appeal, and that his failure to raise any question of law meant that the appeal had to be dismissed. The Court further held that this was an appropriate case for indemnity costs, and ordered Mr Hardie to pay such costs to the respondent.

Orders