Neill v Air Nelson Ltd [2009] Nzca 123

[2009] NZCA 123

IN THE COURT OF APPEAL OF NEW ZEALAND

CA729/2008
[2009] NZCA 122

BETWEENJONATHAN BRUCE NEILL

Applicant

ANDAIR NELSON LIMITED

Respondent

Hearing:17 March 2009

Court:O'Regan, Arnold and Ellen France JJ

Counsel:R E Harrison QC and R R McCabe for Applicant

K M Thompson for Respondent

Judgment:7 April 2009 at 2.30 pm 

JUDGMENT OF THE COURT

AThe application for leave to appeal is dismissed.

BThe applicant must pay the respondent costs for a standard application for leave on a Band A basis and usual disbursements.

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

[1]       This is an application for leave to appeal under s 214 of the Employment Relations Act 2000 against a decision of Judge Couch which dismissed the applicant’s personal grievance claim:  EmpC CHCH CC15/08 CRC35/07 28 October 2008.

Background

[2]       The applicant, Mr Neill, is a commercial pilot.  He is employed by the respondent airline, Air Nelson Limited.

[3]       In December 2005, Mr Guard, who is employed by Air Nelson as its Manager of Flight Operations, became aware of matters that caused him to be concerned about Mr Neill’s medical condition.

[4]       Mr Guard reported his suspicion of a change in Mr Neill’s medical condition to the Director of Civil Aviation.  Mr Guard understood that Air Nelson, as an “operator” for the purposes of the Civil Aviation Act 1990, had an obligation to report the matter in this way under s 27C(2) of the Civil Aviation Act.  That section provides if that an operator is “aware of or has reasonable grounds to suspect” any change in the medical condition of a licensed pilot or the existence of any previously undetected medical condition that may interfere with safe flying, the operator must advise both the pilot and the Director of Civil Aviation as soon as practicable.

[5]       The Civil Aviation Authority (“the CAA”) suspended Mr Neill’s medical certificate and he was subsequently disqualified from holding a medical certificate.  The loss of his medical certificate meant that Mr Neill was not able to fly.  In January 2006, the CAA lifted the restrictions on Mr Neill so he was able to obtain a new medical certificate and resume flying duties.

[6]       Mr Neill brought a personal grievance alleging that he had been unjustifiably disadvantaged in his employment as a result of Mr Guard’s report.  The Employment Relations Authority found in favour of Mr Neill.  That conclusion turned on the Authority’s finding that the information supplied to the CAA was factually inaccurate.

[7]       The Employment Court took a different view of the facts.  Judge Couch concluded that the test in s 27C(2) for reporting such matters was met and Air Nelson was therefore justified in making the report.  Judge Couch also found that the report had not been made “as soon as practicable” as required by s 27C(2).  However, any disadvantage to Mr Neill arose from the suspension of his medical certificate and his subsequent disqualification from holding a certificate, rather than from Air Nelson’s delay in reporting.  The Employment Relations Authority’s determination was set aside.

Grounds for which leave is sought

[8]       Mr Neill seeks leave to appeal on the following grounds:

(a)Did the Employment Court err in law in holding that the respondent’s concerns about Mr Neill gave rise to a duty on Air Nelson to report under s 27C(2) of the Civil Aviation Act?  This question relates primarily to the meaning of “medical condition” in s 27C(2).

(b)Did the Employment Court err in law in holding that the question of whether the s 27C threshold was met was to be determined on the basis of what Mr Guard told the CAA rather than on what Mr Guard was told?

(c)Did the Employment Court err in law in holding that s 27C(2) of the Act precluded or excused Air Nelson from compliance with its statutory and/or contractual duties of fairness and good faith as an employer?  The particular focus is on the need to give the applicant an opportunity to comment in advance before a report was made.

(d)What relief, if any, is the applicant entitled to?

Criteria for grant of leave

[9]       Leave to appeal may be granted only if, in this Court’s opinion, a question of law involved in the proposed appeal, by reason of its general or public importance or for any other reason, ought to be submitted to this Court for decision: s 214(3) of the Employment Relations Act.

Proposed grounds relating to the meaning of “medical condition” and the threshold for reporting

[10]     The applicant wants to argue under this head that Judge Couch failed to direct himself as to the elements of the phrase “medical condition of the licence holder [the pilot]”.  Dr Harrison QC submits that even assuming, for present purposes, that the threshold of suspicion in s 27C(2) is a low one, there is still an issue about what is meant by “medical condition”.  The contrast sought to be made is between those matters, such as food poisoning, which indicated a pilot should not be flying but were not of such order as to require a report.

[11]     It appears that the issue of whether or not a change to a clinically diagnosed medical condition was a prerequisite was not directly put in issue in the Employment Court.  However, Judge Couch did say at [74] that what is suspected need not be “any particular condition or disability”.  Rather, it was sufficient if the suspicion relates to any change in the medical condition of the licence holder. 

[12]     Further, in concluding that the threshold for reporting in s 27C(2) had been met, Judge Couch relied on the evidence about two incidents involving Mr Neill, Mr Guard’s concerns about Mr Neill’s stress level and that Mr Neill was having difficulty sleeping, and Mr Guard’s knowledge that Mr Neill had been receiving counselling.

[13]     As Mr Thompson for Air Nelson points out, an operator like Air Nelson will often know only that a pilot holds a current medical certificate and possibly that, for example, there is an associated requirement on the pilot to wear glasses.  The operator may not be aware of the details of any particular medical condition.  The term “medical condition” must mean medical condition in the wider sense.  Further, a comparison with other sections in the Act suggests that where the expression encompasses only a particular medical condition, that is made plain: s 27C(3). 

[14]     It is also relevant that, as Mr Thompson puts it, s 27C(2) is essentially a “heads up” provision.  When there is a suspicion in terms of the section, the operator is to inform the CAA.  What happens next is a matter for the CAA.  In any event, in the present case, we do not consider the proposed question can be dealt with in the abstract.  It is relevant that, even applying the applicant’s proposed approach to the expression, on the facts as found by the Judge, there was sufficient to trigger the reporting requirement.  Accordingly, even if the applicant were to succeed on the interpretation point, the outcome would be the same.

[15]     The applicant also suggested that Judge Couch erred in relying on a change in medical condition rather than the other limb of s 27C(2), ie, the existence of a previously undetected medical condition.  This is a factual matter not giving rise to any question of law.

[16]     For these reasons, we do not consider that the s 214 threshold is met in relation to this proposed question.

[17]     The application for leave raised an associated question.  That question was whether the Court was wrong to determine that the question of whether the s 27C threshold was met was to be determined on the basis of what Mr Guard told the CAA rather than on what Mr Guard was told.  This question does not raise any broader question of law and is, in any event, essentially a factual issue.

Proposed ground relating to employment law overlay

[18]     Under this heading, the applicant seeks to argue that Judge Couch erred because the only duty he recognised was the fulfilment of Air Nelson’s duty under s 27C as an operator.  Dr Harrison submits that to the extent there are separate duties, ie those of a good employer contractually and/or under the Employment Relations Act and those of an operator under s 27C(2), the two can and should be made to work together.

[19]     To illustrate the point, Dr Harrison notes that Mr Neill and Mr Guard had an “off the record” discussion.  The discussion canvassed various matters relating to Mr Neill and his health.  The two men agreed that Mr Neill would stand down for two weeks and see a doctor.  In these circumstances, Dr Harrison says there was no risk to safety and matters were being managed “in-house”.  He submits that if what happened next is viewed from the perspective of what a good employer would do, there are questions about the way Air Nelson handled the matter especially given the “off the record” nature of the initial discussion.

[20]     In opposing leave on this ground, Mr Thompson submits that the Employment Court has taken account of both employment and civil aviation related obligations and no error of law arises.  In that context, Mr Thompson makes the point that there is a need to distinguish between the various relationships and the resultant duties.  Mr Thompson identifies the following relationships:

Mr Neill ó Air Nelson – as employee/employer;

Mr Neill ó CAA – as licensee/licensor; and

Air Nelson ó CAA – as operator/safety authority.

[21]     The effect of these diverse relationships Mr Thompson says is that, in some situations, Air Nelson will owe duties directly to the CAA.  The nature and scope of the duties owed will vary according to the factual circumstances.  For example, in some cases, Air Nelson may be the operator but not the employer.  In any event, Mr Thompson argues that the applicant ignores the factual finding that much of the information relied on by Air Nelson came from the respondent. 

[22]     Essentially for the reasons advanced by Mr Thompson we agree that this ground does not give rise to an arguable question of law.

[23] The Employment Court accepted that Air Nelson had duties as an employer: at [68] – [69] and [72]. But, Judge Couch concluded, it was “axiomatic” that a fair and reasonable employer would comply with statutory obligations such as those in s 27C(2): at [72]. We agree. A pilot has to expect that his or her employer will comply with the s 27C(2) obligation. It must also be correct that the way in which the duty in s 27C(2) impacts on the employment relationship will vary with the circumstances.

[24]     In the present case, the effect of the applicant’s argument would be to require further investigation by Air Nelson.  On the facts, that argument does not advance matters.  First, most of the relevant information came from Mr Neill or his representative from the New Zealand Airline Pilots’ Association.  Second, the position was that after the discussion between Mr Neill and Mr Guard, Mr Guard obtained further information from Mr Neill’s doctor which indicated a longer stand-down was necessary.  Mr Neill refused to stand down for a longer period.  In those circumstances, plainly the s 27C(2) obligation was triggered.  As one commentator notes, “[b]y his own actions”, Mr Neill “moved from an employee in need of support” to one who presented safety issues: Robson “Recent Case Comment” [2009] ELB 24 at 26.

[25]     Accordingly, while we accept that this question is potentially one of more general and public importance, the point does not give rise to an arguable question in this case.  The s 214 threshold is not met.

Proposed ground relating to relief

[26]     The proposed fourth ground of appeal is consequential on the other proposed grounds.  It follows from our discussion of those grounds that we do not grant leave for this question. 

[27]     For these reasons, the application for leave is dismissed.

Costs

[28]     There is no reason for departing from the usual principle that costs follow the event.  The respondent is accordingly entitled to costs for a standard application for leave on a Band A basis and usual disbursements.

Solicitors:

NZALPA, Auckland for Applicant