Maroroa v Attorney-General
[2000] NZCA 169
•23 August 2000
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA52/00 |
| BETWEEN | TUPORO MATATAI MAROROA |
| Appellant |
| AND | THE ATTORNEY-GENERAL |
| Respondent |
| Hearing: | 21 August 2000 |
| Coram: | Keith J Fisher J Cartwright J |
| Appearances: | T Maroroa (in person) and R McLean M F Quigg and T A Donnelly for the Respondent |
| Judgment: | 23 August 2000 |
| JUDGMENT OF THE COURT DELIVERED BY CARTWRIGHT J |
Tuporo Matatai Maroroa appeals against the judgment of the Employment Court delivered on 22 February 2000. In the Employment Court the appellant challenged the decision of the Employment Tribunal which dismissed his claim to remedies for unjustified dismissal.
Background
The appellant had been employed by Land Information New Zealand (LINZ) (the respondent) or its predecessors for approximately 29 years when, following earlier employment warnings, he was dismissed without notice for serious misconduct on 8 December 1997. Details of the misconduct complained of were set out in a letter of that date.
Not long before the appellant was dismissed, a Mr Devonport was appointed to LINZ as a Level 3 Manager. Among Mr Devonport’s responsibilities were issues related to the appellant’s employment. Following a series of incidents involving the appellant’s employment Mr Devonport and Mr Turner, the respondent’s Regional Manager, agreed that the appellant should be dismissed. The letter of dismissal was prepared by Mr Devonport in consultation with another officer and signed by Mr Turner. It is common ground that for this reason Mr Turner, who was Mr Devonport’s superior, in fact dismissed the appellant.
In the Employment Court the appellant advanced 7 grounds for appealing against the decision of the Employment Tribunal. In this Court he pursued only two:
[a]An absence of authority to dismiss him; and
[b]An absence of evidence to support the Tribunal’s finding that the appellant had an alcohol problem.
The Employment Court found that there was proper delegated authority to dismiss the appellant and that the finding by the Tribunal that the appellant had an alcohol problem was not a factor for which he had been dismissed.
The Argument on Appeal
Although the appellant’s written argument on appeal had been wide-ranging and on occasion not germane to the points in issue, he acknowledged at hearing that s135 of the Employment Contracts Act 1991 applied. It states:
135 APPEALS TO COURT OF APPEAL ON QUESTION OF LAW--
(1) Where any party to any proceedings under this Act is dissatisfied with any decision of the Court (other than a decision on the construction of any individual employment contract or collective employment contract) as being erroneous in point of law, that party may appeal to the Court of Appeal against the decision; and section 66 of the Judicature Act 1908 shall apply to any such appeal.
(2) Every such appeal shall be made by giving notice of appeal within 28 days after the date of the issue of the decision to which the appeal relates.
(3) In its determination of any appeal, the Court of Appeal may confirm, modify, or reverse the decision appealed against or any part of that decision.
(4) Notice of appeal shall not operate as a stay of proceedings in respect of the decision to which the appeal relates unless the Court or the Court of Appeal so orders.
(5) The determination of the Court of Appeal on any appeal under this section shall be final and conclusive.
The appellant’s oral argument, directed primarily at his ground of appeal that there was no authority to dismiss him, was ably and cogently presented.
[a]Section 41 of the State Sector Act 1988 allows the Chief Executive of a Department to delegate powers under the Act. The power to dismiss, however, is confined to the Chief Executive under the appellant’s Collective Employment Contract (CEC);
Alternatively:
[b]If delegation of the power to dismiss is permitted under, for example, s59 of the State Sector Act Mr Turner did not have delegated authority in terms of the respondent’s own Policy Manual and because of express terms of the CEC.
Consequently the purported dismissal was invalid.
Power to Delegate limited under CEC
The provisions of the CEC relevant to the appellant stated:
2.3 NOTICE OF TERMINATION
Excluding the case of a surplus staffing situation when provisions of Clause 7.1.02.8 will apply notice of termination shall be as follows:
(a)In the case of salaried employees except those on trial, one months notice of termination of employment shall be given by either party except as provided below but this may be varied by mutual agreement.
(b)In the case of all other employees one week’s notice of termination of employment shall be given by either party.
(c)Notwithstanding any of the above, in the case of serious misconduct the Chief Executive may dismiss any employee with a lesser period of notice than specified above, or without notice.
In the Employment Court judgment Judge Colgan considered the appellant’s argument that the parties to the CEC had intended that the power to dismiss for serious misconduct was limited to the Chief Executive Officer and could not be delegated. He reached the conclusion however that references to the Chief Executive in clause 2.3(c) of the CEC:
... are to that titular head of the department or to that office rather than being a requirement that the current human occupier of it must personally attend to those obligations and exercise those rights. The reference in clause 2.3(c) to the “Chief Executive” is to be read as the employer by his authorised representative.
We accept the respondent’s submission that because of the restriction placed by s135 of the Employment Contracts Act on the jurisdiction of this Court it is not open to this Court on appeal to review the Employment Court’s construction of the term “Chief Executive” in the appellant’s Collective Employment Contract. That construction was one of two independent bases for the decision on delegation but out of deference to Mr Mararoa’s argument we go on to consider it as far as it relates to the delegation provisions of the State Sector Act and the actual delegation.
Powers of Delegation
The powers of delegation are found in s41 of the State Sector Act which provides:
41 DELEGATION OF FUNCTIONS OR POWERS--
(1) The chief executive of a Department may from time to time, either generally or particularly, delegate to any other person (being [a chief executive or] a member of the senior executive service or an employee) any of the functions or powers of the chief executive under this Act or any other Act, including functions or powers delegated to the chief executive under this Act or any other Act:
Provided that the chief executive shall not delegate any functions or powers delegated to the chief executive by a Minister without the written consent of that Minister, or any functions or powers delegated to the chief executive by the [Commissioner] without the written consent of the [Commissioner].
(2) In any case where the chief executive has, pursuant to subsection (1) of this section, delegated any functions or powers to any person, that person may, with the prior approval in writing of the chief executive, delegate such of those functions or powers as the chief executive approves to any other person (being a member of the senior executive service or an employee) or to the holder for the time being of any specified office in that Department.
(3) Subject to any general or special directions given or conditions imposed by the chief executive, the person to whom any functions or powers are delegated under this section may exercise those functions or powers in the same manner and with the same effect as if they had been conferred on that person directly by this Act and not by delegation.
(4) The power of the chief executive to delegate under this section--
(a) Is subject to any prohibitions, restrictions, or conditions contained in any other Act in relation to the delegation of the chief executive's functions or powers; but
(b) Shall not limit any power of delegation conferred on the chief executive by any other Act.
(5) Every person purporting to act pursuant to any delegation under this section shall, in the absence of proof to the contrary, be presumed to be acting in accordance with the terms of the delegation.
(6) Any delegation under this section may be made to a specified person or to persons of a specified class, or to the holder or holders for the time being of a specified office or specified class of offices.
(7) No such delegation shall affect or prevent the exercise of any function or power by the chief executive, nor shall any such delegation affect the responsibility of the chief executive for the actions of any person acting under the delegation.
It is the respondent’s submission that when determining what functions or powers the Chief Executive may delegate pursuant to s41, it is necessary to consider the ambit of those functions and powers. These include those set out in s32:
32 PRINCIPAL RESPONSIBILITIES--
The chief executive of a Department shall be responsible to the appropriate Minister for--
(a) The carrying out of the functions and duties of the Department (including those imposed by Act or by the policies of the Government); and
(b) The tendering of advice to the appropriate Minister and other Ministers of the Crown; and
(c) The general conduct of the Department; and
(d) The efficient, effective, and economical management of the activities of the Department.
And s34(2):
34 FUNCTIONS, RESPONSIBILITIES, DUTIES, AND POWERS--
...
(2) The chief executive of a Department shall have the powers necessary to carry out the functions, responsibilities, and duties imposed on that chief executive by or under this Act, as well as the powers necessary to carry out the functions, responsibilities, and duties imposed on that chief executive or that Department by or under any other Act.
Parliament clearly intended a Chief Executive to have certain statutory powers and, as well, the power to manage the department for which he or she is responsible. Employment issues fall within this latter category.
We accept that the Chief Executive of LINZ has the responsibility for appointing and removing employees pursuant to s59 of the State Sector Act and moreover, has the power to delegate responsibility for terminating employment. The question then is: was the power delegated to the correct person in the present instance?
To whom may the Power to Dismiss be delegated
In the respondent’s Policy Manual, a portion of which was produced as Exhibit 18 before the Employment Court, the power to dismiss an employee without notice for serious misconduct as provided in clause 2.3 of the Collective Employment Contact may be delegated to a Level 3 Manager. While Mr Turner was senior to Mr Devonport, a Level 3 Manager, there was no precise evidence of Mr Turner’s level. The appellant submits however that the powers of delegation provided under the State Sector Act must be narrowly construed resulting in a finding that notice of termination given by an officer superior to a Level 3 Manager must therefore be invalid.
Judge Colgan determined that Mr Turner could be presumed to be acting in accordance with the terms of the delegation under s41(5). We do not consider it is necessary to invoke this sub-section. We are satisfied that there was adequate evidence before the Employment Tribunal which entitled it to conclude that the established practice with relation to delegation of the relevant power enabled Level 3 Managers and those superior to them to dismiss an employee without notice for serious misconduct. Although the appellant submits that an express statement of that policy, which came into force after his dismissal, and confirmed that a Manager at Mr Turner’s level was entitled to dismiss without notice reinforces his argument that the policy relevant at the time must be read narrowly, because of that evidence we cannot agree. We have reached the view that the newly formulated policy was intended to limit the power to dismiss without notice to Senior Managers of Mr Turner’s level or higher.
In summary we conclude that the Chief Executive Officer of the respondent did have the power to delegate the right to dismiss without notice for serious misconduct. Moreover, we do not accept the appellant’s argument that if any delegation of this power is possible, then he could have been dismissed only by a Level 3 Manager, that is an employee of the respondent at a level inferior to that of Mr Turner. The submission that he had no authority to dismiss the appellant does not therefore succeed.
Employment Tribunal’s Finding of an Alcohol Problem
In the Employment Tribunal a finding was made that the appellant had an “alcohol problem”. The evidential basis for this finding was challenged by the appellant on appeal to the Employment Court which found that, while it seemed clear to the respondent and to the Tribunal
... that when misconducting himself in the ways that led to his dismissal, Mr Mararoa had consumed alcohol to excess,
justification for the appellant’s dismissal did not in fact turn on the Tribunal’s conclusion that he had an “alcohol problem”. Judge Colgan did not therefore consider it necessary to make a finding on this part of the appellant’s appeal.
The appellant did not pursue this point in any depth in his points on appeal. Consequently in his written submissions, counsel for the respondent did not address it. However, in his oral reply the appellant pointed for the first time to written submissions in which he acknowledged that he had an alcohol problem, that alcoholism is an illness, his behaviour (presumably that which led to his dismissal) “was obviously alcohol related” and that he should have been given more assistance and time off work to contend with this illness. The appellant therefore seems to be conceding an “alcohol problem” short of alcoholism.
In dealing with this submission it is necessary to observe:
[a]That any findings relating to alcohol problems, which affected his employment with the respondent, were factual findings which cannot be the subject of appeal to this Court.
[b]The Employment Court disposed of this argument finding that issues relating to the appellant’s consumption of alcohol were not the basis for the termination of his employment.
[c]In any event the evidence taken at the Employment Tribunal demonstrates that there were efforts made by the respondent to assist and support the appellant in dealing with any employment difficulties he had which related to alcohol.
We are unable to accept the appellant’s submission that he was unjustifiably dismissed because of employment problems related to alcohol or, as the appellant characterises it, related to his illness.
Conclusion
For these reasons the appeal must be dismissed.
Costs
We invite counsel and the appellant to submit memoranda.
Solicitors
T M Maroroa, Auckland
Quigg Partners, Wellington
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