Ramkissoon v Commissioner of Police

[2017] NZCA 558

IN THE COURT OF APPEAL OF NEW ZEALAND

CA433/2017
[2017] NZCA 558

BETWEEN	DANIEL SEAN RAMKISSOON Applicant
AND	THE COMMISSIONER OF POLICE Respondent

Hearing:	30 October 2017
Court:	French, Winkelmann and Brown JJ
Counsel:	C W Stewart and C M Pallant-Drake for Applicant K F Radich for Respondent
Judgment:	5 December 2017 at 11.30 am

JUDGMENT OF THE COURT

AThe application for leave to appeal is granted on the following questions:

(i)Did the Employment Court err in dismissing the unjustified dismissal grievance by failing to take into account as a relevant consideration, and treating as merely background, the Opotiki non‑appointment events?

(ii)Did the Employment Court err in its determination that the test in ss 103A and 125 of the Employment Relations Act 2000 as amended by the Employment Relations Amendment Act 2010 applied to the applicant’s unjustified dismissal grievance?

BCosts on the application are reserved pending determination of the substantive appeal.

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REASONS OF THE COURT

(Given by Brown J)

1. We grant leave to appeal against the decision of Chief Judge Colgan in the Employment Court[1] on the following two questions:

   (a)Did the Employment Court err in dismissing the unjustified dismissal grievance by failing to take into account as a relevant consideration, and treating as merely background, the Opotiki non‑appointment events?

   (b)Did the Employment Court err in its determination that the test in ss 103A and 125 of the Employment Relations Act 2000 as amended by the Employment Relations Amendment Act 2010 applied to the applicant’s unjustified dismissal grievance?

   [1]Ramkissoon v The Commissioner of Police [2017] NZEmpC 85.

2. In addition to seeking leave on the above issues, the applicant also sought leave to appeal on three further proposed errors of law:

   (a)The Employment Court erred by not taking into account adequately or at all relevant matters in determining the rehabilitation grievance and constructive dismissal grievances.

   (b)The Employment Court made factual findings that were so clearly unsupportable or untenable in relation to the rehabilitation grievance as to amount to an error of law.

   (c)The Employment Court’s extreme delay of three years and seven months in delivering judgment constituted an error of law.

3. We decline leave to appeal in respect of these three matters.  We do not consider that either [2(a)] or [2(b)] satisfy the criteria for the grant of leave to appeal under s 214(3) of the Employment Relations Act.  They are not questions of law that, by reasons of their general or public importance or for any other reason, ought to be submitted to this Court for determination.

4. With reference to [2(c)], while the delay in delivering judgment in this case of 43 months is extreme, this Court in Idea Services Ltd v Clark[2] emphasised that in employment cases an applicant is required to establish that the delay potentially gave rise to an error of law that meets the s 214(3) test.  If there was such an error in the present case, in our view it is subsumed in the content of the first question upon which we have granted leave.  Hence, we consider a grant of leave on the basis of the delay in and of itself is unnecessary and is therefore declined.

   [2]Idea Services Ltd v Clark [2014] NZCA 97, (2014) 11 NZELR 619.