IN THE EMPLOYMENT COURT AUCKLAND [2015] NZEmpC 118 ARC 22/14

Transcription

1 IN THE EMPLOYMENT COURT AUCKLAND IN THE MATTER OF AND IN THE MATTER AND IN THE MATTER BETWEEN AND [2015] NZEmpC 118 ARC 22/14 a challenge to a determination of the Employment Relations Authority of the defendant's objection to answer interrogatories of the plaintiff's challenge to objection to disclosure of documents SHABEENA SHAREEN NISHA (NISHA ALIM) Plaintiff LSG SKY CHEFS NEW ZEALAND LIMITED Defendant Hearing: 23 and 26 June 2015 (Heard at Auckland in Chambers) Appearances: MW O'Brien and B Nicholson, counsel for plaintiff J Douglas, counsel for defendant Judgment: 23 July 2015 INTERLOCUTORY JUDGMENT (NO 13) OF CHIEF JUDGE G L COLGAN [1] This interlocutory judgment deals with two applications made by the plaintiff for orders against the defendant. The first is the plaintiff s challenge to the objection of LSG Sky Chefs New Zealand Limited (LSG) to disclose documents to her. The second deals with the defendant s objection to answering interrogatories contained in a notice served by the plaintiff on the defendant on 3 June [2] The challenge to objection to document disclosure process is set out expressly in the Employment Court Regulations 2000 (the Regulations). There SHABEENA SHAREEN NISHA (NISHA ALIM) v LSG SKY CHEFS NEW ZEALAND LIMITED NZEmpC AUCKLAND [2015] NZEmpC 118 [23 July 2015]

2 being no specific regulations about interrogatories in the Employment Court, r 8.40 (objection to answer) of the High Court Rules will govern the position pursuant to reg 6 of the Regulations. [3] I deal first with the plaintiff s challenge to the defendant s objection to disclose documents. By the time of the commencement of the hearing on 23 June 2015, the parties contest was down to four categories of documents. For convenience I will use the paragraph numbers from the plaintiff s notice requiring disclosure to describe these. They are the documents in paras 1, 12, 14 and 15. [4] Paragraph 1 simply describes the documents sought as including current versions of the documents plus any previous versions of the documents that were used since November Paragraphs 12, 14 and 15 are: 12. All documents including Policy Manuals and Standard Operating Procedures relating to the HR Department s reporting to the defendant s management team or equivalent. 14. All documents that record information relating to promotions, wage increases, and wage decreases for all employees (as an aggregate). 15. All documents that record where an employee who is covered under the LSG collective agreement is paid otherwise than at the minimum rate specified in that collective agreement. [5] As to 12, at the conclusion of the hearing Ms Douglas agreed that she would make available directly to counsel for the plaintiff, copies of the defendant s manuals that are relevant to matters in the proceeding. Those are its HR Policy Manuals and Standard Operating Procedures as were in force for the duration of the plaintiff s employment with the defendant. [6] To the extent that the plaintiff seeks variations evidenced by subsequent versions of these documents, I do not consider that these will be relevant to the proceeding, although I accept that any documents evidencing changes by the defendant to those manuals made between February 2011 and January 2012, being the span of the plaintiff s employment, may be relevant. [7] I do not consider relevant manuals or parts of manuals dealing with the defendant s HR Department s reporting to its management team or equivalent.

3 Whilst non-privileged internal reports about Ms Alim s transfer (or, if such matters were dealt with on a group basis, relating to all employees who transferred to LSG at the same time as Ms Alim) may be relevant and therefore disclosable, I do not consider that LSG manuals about procedures for such reports within LSG generally will be relevant. [8] Beyond those documents the defendant agreed to disclose, those in para 12 need not be disclosed. [9] Turning next to para 14 documents (relating to promotions, wage increases and wage decreases for LSG s employees), I do not accept that such documents will be relevant to the issues in the case. Whilst particular documentation about these elements affecting Ms Alim in particular (or other employees transferred from Pacific Flight Catering Ltd (PFC) in general) may be relevant, theoretical or generic operational policies are not sufficiently relevant to the matters at issue to warrant disclosure. [10] Finally, on the plaintiff s claims to documents under para 15, I do not consider that, as pleaded, documents that simply record how employees of LSG may be paid otherwise than at the minimum rate specified in its collective agreement, will be relevant. Again, documentary records dealing with the circumstances of Ms Alim (or even her transferred colleagues generally) may be relevant. However, documents evidencing LSG s self-imposed policies and procedures for dealing with such matters generically will similarly fall outside the realm of relevant evidence. [11] Except for relevant documents as described in the foregoing paragraphs, the plaintiff s challenge to the defendant s objection to disclosure of these documents is dismissed. [12] I turn next to the plaintiff s proposed interrogatories.

4 Interrogatories [13] Questions of relevance and, to some extent at least, of privilege and confidentiality of documents and evidence, are determined by reference to the pleadings, that is the statements of claim and defence setting out the issues that the Court must determine. The latest pleading filed for the plaintiff is her first amended statement of claim filed on 11 April The plaintiff s causes of action are as follows. [14] First, she sues in breach of contract for remuneration arrears whilst employed by LSG after her transfer under Part 6A of the Act from the employment of PFC. Similar claims of breach of contract relate to alleged breaches concerning bereavement leave, service pay, outstanding leave, accruing leave, and alternative leave. [15] The plaintiff s second cause of action is for unjustified constructive dismissal. The wrongful conduct of the defendant said to have led to the plaintiff s resignation being a dismissal, includes allegations of a series of actions intended by LSG to cause Ms Alim to resign or put improper pressure on her to accept change to terms and conditions of employment. [16] The plaintiff s third cause of action seeks a penalty for breach by the defendant of its statutory good faith obligations. [17] Fourth, the plaintiff seeks a further penalty for what she says was the defendant s failure to provide copies of her wage and time records. [18] Ms Alim s fifth cause of action claims a breach of ss 69I(2)(b) and 69J(2)(a)(iii) of the Act by the defendant s failure to recognise and apply her terms and conditions of employment as they were immediately before her transfer to LSG including, but not limited to, her entitlement to sick, annual and alternative leave. [19] Excluding claims for penalties which are not quantified and which, in any event, are prima facie payable to the Crown, Ms Alim s monetary claims amount to

5 about $30,000 at best, including compensation for non-monetary breaches, compensation for arrears of remuneration, a sum equivalent to three months remuneration for her personal grievance, and the sum of $15,000 as compensation under s 123(1)(c)(i) for unjustified disadvantage in, and/or unjustified dismissal from, her employment. [20] The defendant s response to these claims includes denials of most of the claims. [21] Now to the interrogatories themselves. The interrogatories delivered by the plaintiff to the defendant number 77. They are dealt with under a number of headings, reference to which will be convenient to address most of them. [22] The first three numbered interrogatories (in effect, seven, once sub-questions are taken into account) all address the question of who is funding the defendant s defence of these proceedings. [23] In her affidavit (sworn on 23 June 2015) in support of the defendant s objection, LSG s Marie Park deposes to the defendant funding its defence of the proceedings itself. That would be sufficient to dispose of those interrogatories but they are also irrelevant to the issues in the proceeding. At worst, they can be seen as a tit-for-tat response to issues raised about the underwriting of the plaintiff s proceeding, to which support (if it exists) no objection can be taken. Interrogatories that are simply retaliatory do not become thereby relevant interrogatories. The defendant s objection to answering interrogatories numbered 1-3 (inclusive) succeeds. [24] The next set of interrogatories (numbered 4-25 although with numerous additional sub-questions) deals with Payroll systems. They relate to processes of entering information into the defendant s payroll system. The issues in the case are, however, not about how information was entered by the defendant into its payroll system, but what was actually paid to Ms Alim during her employment with the defendant, and whether that was correct. Further, I agree with the defendant that some of the questions appear to relate to what occurred during Ms Alim s

6 employment with her former employer, not with LSG. Whilst it will be relevant to the substantive proceedings whether Ms Alim s payroll records changed at PFC before her transfer to LSG, the only claim by Ms Alim in relation to LSG is that she was paid incorrectly. That, in turn, is really a question of what legal obligations LSG had to pay her remuneration. [25] In these circumstances, I accept that any relevant questions can be explored by cross-examination at the hearing but that the extent and indiscriminate nature of these payroll questions makes them oppressive. [26] The defendant s objection to these payroll questions (numbered 4-25) is likewise upheld. [27] The next set of interrogatories is to be found between paras of the plaintiff s notice under the heading Defendant s policies and procedures. These are said to relate to the period of Ms Alim s employment from December 2010 to March There are 14 questions in effect, the one numbered 26 being a statement identifying the period that the following questions cover. I accept the defendant s contention that it is not truly in issue between the parties whether Ms Alim was offered or conferred a promotion by LSG which the questions appear to address in terms of its policies and procedures about such issues. [28] Again, while it is in issue whether Ms Alim was offered a promotion at PFC, that does not mean thereby that this is a valid question in relation to LSG. The same applies to a pay rise that Ms Alim may have received at PFC. That does not make relevant LSG s policies and procedures about pay rises. [29] The defendant s objection to the interrogatories numbered is likewise upheld. [30] Next is a series of interrogatories under the heading Recording meetings. These are the interrogatories numbered of the plaintiff s notice. These also relate to the defendant s policies and procedures about meeting notes and notes of telephone conversations; Ms Park s standard practice about such note-takings;

7 similar questions in relation to Peta Kome s, Ashton Dempsey s and Jacob Roest s standard or usual policies and practices about note-taking; and finally, whether the defendant has kept and retained such notes and, if so, where they were stored. [31] Ms Park, on behalf of LSG, deposes to having disclosed at an early stage of the proceedings all notes of relevant meetings held by LSG because of their relevance to the issues between the parties. Any other relevant questions about notes or record-keeping are properly matters for trial to the extent that they are both relevant and not a duplication of attempts already made through the document disclosure process. In this respect, I agree with the defendant that the interrogatories are oppressive. [32] The defendant s objection to these interrogatories succeeds. [33] Next, under the heading Management involvement come questions (inclusive). These questions again relate to the period from December 2010 to March The questions relate to management responsibilities within LSG concerning decisions about variations to terms of employment. The defendant says that to the extent that there are any relevant issues contained within these questions, they should be dealt with more appropriately at trial. It also contends that a number of the questions under this heading are irrelevant; for example, question 73 relating to whether Ms Park provides updates to any other officer or employee of the defendant, or of any other related corporate entity. I agree that such questions are not relevant to the issues in the case but may also invoke questions of litigation privilege, especially as they concern personal grievances and legal proceedings such as this and other associated proceedings in the Employment Relations Authority and the High Court. I am aware that questions of litigation privilege are to arise for decision in another interlocutory application. They are best left to the disclosure process and are not the proper subject of interrogatories in my view. [34] I agree with the defendant that question 68 (relating to Authorities to dismiss employees ) is not relevant to the proceedings. It is not in issue that Ms Alim was dismissed by LSG. The pleadings contemplate that she resigned from her employment. If her resignation was a constructive dismissal, it is immaterial

8 whether the person(s) responsible for that had or did not have authority to do so in LSG. If she was dismissed, it was by the company. [35] The defendant s objections to these interrogatories are likewise sustained. [36] Finally, questions under the heading Plaintiff s performance relate to Ms Alim s performance appraisals at LSG. [37] These are the only two opposed interrogatories that I consider the plaintiff is justly entitled to deliver. In a case involving an allegation of unjustified constructive dismissal, the plaintiff s performance of her job is, or at least may be, relevant. The proposed interrogatories address that issue, are not oppressive, and should be responded to formally by the defendant within seven days of the date of this judgment. [38] To be clear, those interrogatories are as follows: 75 Did the defendant conduct any appraisals of the plaintiff s performance during her employment with the defendant? 76 If the answer to question 75 is yes, then: I ii iii iv How were these appraisals conducted? Who conducted these appraisals? How were these appraisals recorded? How was the plaintiff notified of the results of the appraisals? 77 Who from the defendant had any role in 'managing', 'supervising' or otherwise overseeing the plaintiff's performance of her duties? What does a sense of proportionality connote? [39] In final submissions, Mr Nicholson for the plaintiff took issue with my description (in Interlocutory Judgment (No 5)) of this case being a personal grievance of a single former employee in which the maximum monetary claims are relatively modest. 1 That should, of course, have read that the claims are also for 1 Nisha v LSG Sky Chefs New Zealand Ltd (No 5) [2015] NZEmpC 64 at [24].

9 arrears of remuneration and for penalties for breaches of a collective agreement as well as compensation for a personal grievance, but this was not the object of Mr Nicholson s disagreement. [40] Counsel submits that this is a unique case that will interpret and apply Part 6A of the Act. Counsel submits that the judgment will have important implications for other employers, employees, and unions, and although Parliament has recently amended a number of the aspects of Part 6A (but which amendments will not affect the outcome of this case), the matters at issue are unaffected by that recent amending legislation. Ms Douglas revealed, however, that three other similar sets of claims, brought by employees in the same circumstances as Ms Alim s, have now been disposed of, one by settlement and two by dismissal for want of prosecution, so that there are now no longer any similar claims against LSG apart from this. [41] The points made by Mr Nicholson are correct in one sense of the word. However, what I described as a sense of proportionality when comparing the costs of preparation for the litigation with the best achievable outcome for the plaintiff, requires a balancing of those arguable broader benefits against the costs to the parties. That is not only of legal representation costs but also the cost to the Court of substantial use of valuable judge time. [42] Given that the proceeding is clearly not able to be settled in the way that most of these sorts of cases for similar remedies should and would be, the Court must nevertheless balance an expeditious and just outcome against the resources to be committed by the parties and the Court to achieving that. The case will deal with at least one important and unique legal issue which has already been outlined in Interlocutory Judgment (No 3). 2 That is the interpretation and application of the phrase immediately before the transfer of an employee as this relates to that employee s terms and conditions of employment. [43] There may also be legal issues around the terms and conditions of engagement of a transferred employee where the new employer has a collective agreement which the transferred employee is eligible to join but which provides 2 Nisha v LSG Sky Chefs New Zealand Ltd (No 3) [2015] NZEmpC 22 at [16]-[17].

10 significantly different terms and conditions of employment than the employee enjoyed under her previous employer s collective agreement. [44] In other respects, however, the plaintiff s claims to remuneration arrears will be a matter of analysis of the relevant previous terms and conditions of employment; of the provision of remuneration and benefits to the transferred employee with LSG; and whether these were less than what the defendant was obliged to provide. Determining whether the defendant may be liable for penalties will also likely be an unremarkable exercise of determining whether any breach or breaches by LSG meets the standard of proof required and, if so, whether penalties should be imposed, and in what sums. [45] The plaintiff s personal grievance alleges that she was dismissed constructively and unjustifiably. The nature of the constructive dismissal is the claim by the plaintiff that LSG treated her deliberately and with the dominant motive of compelling her to resign. The plaintiff will bear more than the usual onus in a personal grievance where a dismissal is admitted because here the allegation is of a constructive dismissal which is denied by the defendant. If the Court is satisfied that there was a constructive dismissal, then the defendant will bear the onus of justifying its actions. [46] As already mentioned and finally, as Ms Douglas pointed out and with which counsel for the plaintiff did not disagree, apart from any penalties the amounts of which are in the discretion of the Court, and which are, prima facie, payable to the Crown in any event, the monetary remedies claimed do not exceed $30,000. There are no claims for other non-monetary relief such as reinstatement. I think I can say with confidence that the parties own legal fees have already exceeded the amount in remedies claimed. [47] The defendant and PRI Flight Catering Ltd (PRI), by whom Ms Alim was employed previously and which the defendant says is funding her prosecution of these proceedings, are both commercial opponents in a fiercely competitive field and, together, are the dominant and probably sole entities in this field in New Zealand.

11 [48] For the foregoing reasons, I am not moved to alter my view that this is an especially appropriate case in which to seek to maintain a sense of reasonable proportionality between the best outcomes of the litigation for each party and of the expenditure of resources to achieve these. A new issue for trial? [49] The plaintiff now says that, for the first time, a new issue has risen for trial which will have a number of effects. These will include the need to brief and call a significantly greater number of witnesses to counter this assertion, the need to deal with disclosure questions covering a significantly broader range of documents than were previously present and will mean that the scheduled hearing will probably have to be adjourned in fairness to the plaintiff in these circumstances. [50] That new question is said to be the need to identify the true terms and conditions of employment of Ms Alim s previous employment with PFC. Those terms and conditions are in doubt and their genuineness is challenged by the defendant because, it says, shortly before and in the knowledge of her impending transfer, PFC augmented those terms and conditions substantially. It is said to have done so by promoting Ms Alim from her role as a catering assistant to a supervisor and, thereby, enhancing her terms and conditions of employment substantially. It was these enhanced provisions to which Ms Alim asserted a right when transferred to LSG. Although it initially accepted them on face value, LSG said that it soon came to realise that these may have been artificially and unilaterally increased by PRI, inferentially to damage its commercial rival LSG, to whom it had lost the Singapore Airlines catering contract on which Ms Alim worked. [51] Is this truly a new issue only identified recently by the Court and which took the plaintiff by surprise? I begin with the pleadings and, in particular, the defendant s allegations relating to this issue contained in its statement of defence. [52] The defendant s statement of defence (dated 13 May 2014) addresses the issue of the genuineness of Ms Alim s claims that she was a supervisor on relevant terms and conditions of employment when she transferred from PRI or PFC to LSG.

12 It does so, for example, at para 3 where it denies her assertion at para 6 of the first amended statement of claim that she was towards the end of her employment a supervisor at PRI Flight Catering Ltd trading as Pacific Flight Catering. In addition to denying that allegation, the defendant says: further the plaintiff was not employed as a supervisor for PRI Flight Catering Ltd (PRI) or Pacific Flight Catering Ltd (PFC). The plaintiff was a catering assistant for the duration of her employment with PRI up to the time of transfer to the defendant. [53] Next, the defendant denies the plaintiff s allegations in para 8 of the amended statement of claim that On or about 31 January 2011, PRI increased the plaintiff s salary and leave entitlements consistent with supervisor rates under her PRI collective employment agreement ( PRI CEA ). In addition to denying that allegation, the defendant says: further that the plaintiff s salary was incorrectly inflated and her title was changed on her payroll records by PRI to that of a Supervisor despite the plaintiff continuing to only do the duties of a catering assistant. PRI incorrectly inflated the leave balances without explanation. PRI and the plaintiff did not enter into a variation to her employment terms to promote her to the role of supervisor or to increase her leave entitlements. [54] There are numerous similar references in the defendant s statement of defence which similarly and clearly bring into question the genuineness of the plaintiff s position and terms and conditions of employment with PRI at the time of her transfer and upon which she insisted that she continued with LSG. These appear at paras 7, 8, 13, 34 and 50 of the defendant s statement of defence which I will not set out here. [55] Additionally, this issue has been repeatedly flagged in other proceedings in other courts involving PRI and LSG and which are clearly associated with these in the sense that they deal with questions of liability for remuneration upon the Part 6A transfer between Ms Alim s former and subsequent employers. These references must have been known to the plaintiff whose lawyers are the same in all jurisdictions.

13 [56] There are at least five such references in the judgments of the High Court, 3 the Court of Appeal, 4 the Supreme Court, 5 the High Court (again on costs) 6 and, finally, the Employment Court. 7 [57] I will simply mention two passages, one from each of the judgments of the High Court and the Court of Appeal. At [8] of the judgment of the High Court Woolford J said: 8 The figure of $257, was calculated on the basis of leave balance information provided to LSG by Pacific on the date of transfer of the 40 staff. The evidence at trial however established that the information provided to LSG on that date had been deliberately inflated. Pacific now accepts that shortly before the 40 staff transferred to LSG, it altered the pay records of all but two or three of the staff (in large part with the employees knowledge) to increase their leave balances by between 40 and 100 hours. It also increased their hourly pay rates, again with consultation or formal notification. [58] At [8] the following appears in the judgment of the Court of Appeal: [8] Mr Skelton QC, said that Pacific had deliberately inflated all but two or three of the transferring Pacific employees leave balances and given them pay rises, in most cases without informing the employees they were doing so. Pacific s conduct in that regard appears to have been reprehensible, but we do not see it as having any bearing on the issues before us in the present appeal. [59] In my assessment, the reference by this Court in its Interlocutory Judgment (No 6) of 15 May 2015 to the genuineness of Ms Alim s claimed terms and conditions of employment, can have come as no surprise at all to the plaintiff. Its belated use as a ground for wanting broader disclosure of documents, numerous interrogatories, and foretelling that the August 2015 fixture for this case is in severe jeopardy, arguably amount to either or both of a wish to postpone the day of judgment and to punish the defendant financially. [60] I emphasise that these are only allegations at this stage. Nevertheless, LSG s defence to the claims of breach of terms and conditions of Ms Alim s employment 3 LSG Sky Chefs New Zealand Ltd v Pacific Flight Catering Ltd [2012] NZHC 2810 at [8]. 4 Pacific Flight Catering Ltd v LSG Sky Chefs New Zealand Ltd [2013] NZCA 386 at [8]. 5 LSG Sky Chefs New Zealand Ltd v Pacific Flight Catering Ltd [2014] NZSC LSG Sky Chefs New Zealand Ltd v Pacific Flight Catering Ltd [2015] NZHC 685 at [5]. 7 Matsuoka v LSG Sky Chefs New Zealand Ltd [2013] NZEmpC 165 at [11]. 8 LSG Sky Chefs, above n 3.

14 with LSG, and its defence to the other claims, turns in part, the defendant says, on the Court s determining what were the terms and conditions of employment on which Ms Alim was entitled in law to transfer to the employment of LSG. [61] It is necessary, also, to deal with the relevant contents of Interlocutory Judgment (No 6) in which counsel for the plaintiff contend that, for the first time and unilaterally, the Court put in issue this question of the genuineness of the plaintiff s terms and conditions of employment upon which she purported to transfer to LSG. 9 Interlocutory Judgment (No 6) was another one about document disclosure. [62] In Interlocutory Judgment (No 6) the Court said: [13] The case is going to turn on the terms and conditions of the plaintiff s employment with Pacific Flight Catering Limited (PFC) and/or PRI Flight Catering Limited (PRI). Although the particular focus of the case will be on those terms and conditions applicable to Ms Alim s employment immediately before 22 February 2011 (whatever that phrase may be interpreted to mean) when she elected to transfer to the defendant, the genuineness of some of those pre-transfer terms and conditions asserted by Ms Alim will also be in issue. To determine that, the history of Ms Alim s employment with PFC and/or PRI will be relevant. [14] Therefore, I do not uphold the plaintiff s contention that the only relevant documents are the ones evidencing the plaintiff s terms and conditions immediately before (ie during the days or, at most, weeks before) transfer on 22 February [63] Upon reflection I consider that to be a re-statement of one of the issues at the heart of the case and, although perhaps not so described until then, nevertheless reflects the longstanding positions of the parties. [64] The defendant is entitled to an award of costs in respect of its response to the service of the interrogatories upon it and to the costs of successfully objecting to the vast majority of them. She is also entitled to costs on the document disclosure application. The amounts of these will be reserved until costs overall are assessed. [65] Although it should be unnecessary to say so, the plaintiff may care to consider whether her dissatisfactions with the defendant s compliance with orders 9 Nisha v LSG Sky Chefs New Zealand Ltd (No 6) [2015] NZEmpC 65 at [13]-[14].

15 and with the Court s response to her multitudinous interlocutory applications may not be dealt with more expeditiously and economically by awaiting the outcome of the case and considering her opportunities to challenge that outcome if indeed she is unsuccessful at that point. GL Colgan Chief Judge Judgment signed at 1 pm on Thursday 23 July 2015