IN THE EMPLOYMENT COURT AUCKLAND [2017] NZEmpC 129 EMPC 168/2017. PHOENIX PUBLISHING LTD Applicant. LILY MCCALLUM Respondent

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1 IN THE EMPLOYMENT COURT AUCKLAND IN THE MATTER OF BETWEEN AND [2017] NZEmpC 129 EMPC 168/2017 an application to extend time to file a challenge to a determination of the Employment Relations Authority PHOENIX PUBLISHING LTD Applicant LILY MCCALLUM Respondent Hearing: On the papers filed on 18 and 28 July 2017 Appearances: S Bennison, General Manager and representative for the applicant L McCallum, respondent in person Judgment: 25 October 2017 JUDGMENT OF JUDGE M E PERKINS [1] The abovenamed respondent, Lily McCallum, was employed as an advertising territory manager by the applicant, Phoenix Publishing Ltd, on 27 February A written employment agreement was entered into between the parties. [2] Differences arose between the parties shortly after the commencement of employment. On 17 March 2017, Ms McCallum resigned her employment, providing four weeks notice in writing in accordance with the agreement. Instead of allowing Ms McCallum to work out her notice, she was stood down from employment but received no payment in lieu of notice as required under the employment agreement. PHOENIX PUBLISHING LTD v LILY MCCALLUM NZEmpC AUCKLAND [2017] NZEmpC 129 [25 October 2017]

2 [3] Ms McCallum commenced a claim in the Employment Relations Authority for unpaid wages, unpaid holiday pay entitlement and unpaid expenses. In an oral determination delivered on 13 June 2017 and confirmed in writing the same day, the following orders were made against Phoenix Publishing Ltd: 1 (a) that it pay Ms McCallum the sum of $2, gross in respect of the unpaid wages; (b) that it pay Ms McCallum the sum of $ gross as holiday pay entitlement; (c) that it pay Ms McCallum the sum of $3, gross in respect of the unpaid notice period; (d) that it pay Ms McCallum the sum of $ in respect of unpaid expenses owing under the agreement. (e) that it reimburse Ms McCallum for the filing fee in the Employment Relations Authority of $ [4] Phoenix Publishing Ltd did not challenge the determination of the Authority within the time specified under the Employment Relations Act 2000 (the Act). On 18 July 2017, Phoenix Publishing Ltd filed an application asking the Court to grant an extension of time to file a challenge and extending the time for filing a statement of claim. A proposed draft statement of claim was filed with the application, although if the application to extend time is to be granted, the proposed statement of claim would require substantial amendment. The draft does not comply with the requirements for a statement of claim as specified by the Employment Court Regulations The application seeking leave to extend time was supported by an affirmation of the general manager of Phoenix Publishing Ltd, who was also representing the company in the proceedings. 1 McCallum v Phoenix Publishing Ltd [2017] NZERA Auckland Employment Court Regulations 2000, reg 11.

3 [5] Ms McCallum opposed the applications for extension of time. In her notice of opposition, she sets out the circumstances which prevailed in the proceedings before the Authority. The determination of the Authority also records that in the Authority proceedings, Phoenix Publishing Ltd failed to file a statement in reply, appear at the investigation meeting and otherwise failed to follow directions which had been given by the Authority in preparation for the investigation meeting. [6] In view of the fact that if leave is granted to Phoenix Publishing Ltd it will be seeking a hearing de novo of the entire matter, a good faith faith report was requested from the Authority pursuant to s 181 of the Act. That good faith report was prepared and delivered to the Court on 19 September The findings of the Authority were that Phoenix Publishing Ltd significantly obstructed the Authority s investigation by failing to cooperate with the directions given in preparation for the investigation meeting and failed to act in good faith by being significantly obstructive to the Authority s investigation. [7] When the good faith report was received, both Phoenix Publishing Ltd and Ms McCallum were given the opportunity of commenting upon it before the matter was progressed by the Court. Each of the parties was to file their response by way of memorandum on or before 4 pm on 3 October Ms McCallum responded by describing the steps she had taken to resolve the dispute between her and Phoenix Publishing Ltd and how all of her efforts were ignored. No response whatsoever was received from Phoenix Publishing Ltd, and indeed, Phoenix Publishing Ltd did not respond to the Authority Member s request to provide comments on the draft good faith report before it was forwarded on to the Court. [8] In order to progress the matter further, a telephone directions conference was convened for 9.30 am on 13 October Notice was given to the parties of the date and time set for the conference. Ms McCallum made herself available by telephone connection in order that she could participate in the directions conference. No representative of Phoenix Publishing Ltd made themselves available for the conference. The Registrar endeavoured to contact the general manager of the company without success.

4 [9] Since the telephone conference, Ms McCallum has forwarded to the Court copies of the invoices setting out legal fees she has incurred in respect of the proceedings commenced by Phoenix Publishing Ltd in the Court. In particular, these included attendances relating to the preparation and filing of a notice of opposition to the application for leave. She seeks an order that she be reimbursed for such costs. [10] It is clear from the behaviour of Phoenix Publishing Ltd in this matter that it has failed to properly prosecute its application for an extension of time to challenge the determination of the Authority and for leave to file a statement of claim. That is in effect a continuation of its own inadequate and bad faith behaviour in the proceedings before the Authority. In view of the good faith report received from the Authority Member, even if the challenge by Phoenix Publishing Ltd was allowed to proceed by way of an extension of time, the nature of the hearing would be severely limited, as the Court would be likely to make an order limiting the nature and extent of the hearing pursuant to s 182 of the Act. [11] In view of the fact that the applicant has failed to adequately prosecute its application in the proceedings filed in the Court, the application is dismissed. Phoenix Publishing Ltd therefore will not be granted an extension of time or leave to file a statement of claim. [12] In the circumstances, it is reasonable that Ms McCallum be reimbursed for a portion of her legal costs incurred in taking steps to oppose Phoenix Publishing Ltd s application. The total sum claimed is $1, The fees which her legal advisors have charged her have been quite substantially discounted. However, any award of costs in Ms McCallum s favour would really need to relate specifically to the attendances relating to the notice of opposition. In all the circumstances and in exercising my discretion in the matter, I consider that an appropriate award of costs would be $ Phoenix Publishing Ltd is ordered to pay that sum to Ms McCallum. In view of the fact that the determination of the Authority still stands, Phoenix Publishing Ltd remains liable to Ms McCallum in respect of any of the

5 orders of the Authority which remain unsatisfied. However, I understand that despite the application seeking leave to challenge the determination, Phoenix Publishing Ltd has paid those sums to Ms McCallum. Judgment signed at am on 25 October 2017 M E Perkins Judge