IN THE EMPLOYMENT COURT WELLINGTON IN THE MATTER OF AND IN THE MATTER BETWEEN AND [2017] NZEmpC 143 EMPC 317/2017 a request for urgency and an application for a stay of an application of urgency CAROLINE SAWYER Applicant VICE-CHANCELLOR OF THE VICTORIA UNIVERSITY OF WELLINGTON Respondent Hearing: 7 November 2017 Appearances: K Smith, counsel for the applicant M Scholtens QC and G Davenport, counsel for the respondent Judgment: 13 November 2017 INTERLOCUTORY JUDGMENT OF JUDGE K G SMITH [1] On 1 November 2017, the Employment Relations Authority imposed a penalty on Dr Caroline Sawyer pursuant to s 149(4) of the Employment Relations Act 2000 (the Act). 1 [2] Dr Sawyer was ordered by the Authority to pay a penalty of $8,500 within 28 days of the determination. The sum ordered to be paid by Dr Sawyer included two amounts of $3,750 each to be paid for the use of two University employees identified 1 The Vice-Chancellor of Victoria University of Wellington v Sawyer [2017] NZERA Wellington 106. CAROLINE SAWYER v VICE-CHANCELLOR OF THE VICTORIA UNIVERSITY OF WELLINGTON NZEmpC WELLINGTON [2017] NZEmpC 143 [13 November 2017]
in the determination as Mr X and Mr Y. The balance of $1,000 was ordered to be paid to the Authority for payment into the Crown bank account. 2 [3] Dr Sawyer has challenged this determination and seeks a stay pending that it being heard. She has applied for urgency and this decision only deals with that application. The Vice-Chancellor opposes urgency being granted. [4] It is necessary to briefly record what the Authority described as the background to the order to pay a penalty to place into context this request for urgency. [5] On 21 December 2016, the Authority determined that a record of settlement between the Vice-Chancellor and Dr Sawyer, dated 24 July 2014, was final and binding on the parties. That record of settlement had been entered into pursuant to s 149 of the Act. 3 In reaching that conclusion the Authority rejected Dr Sawyer s submissions that the record of settlement was a nullity and void. 4 [6] On 21 February 2017, the Vice-Chancellor filed a statement of problem in the Authority seeking a compliance order in respect of the record of settlement and penalties. 5 In response to that application steps were taken on Dr Sawyer s behalf by her then lawyer which resulted in a further determination of the Authority, dated 3 March 2017, recorded as being by consent. 6 [7] On 3 March 2017 Dr Sawyer s lawyer had sent an email to the Authority, and to counsel representing the Vice-Chancellor, which was said to convey Dr Sawyer s consent to a compliance order. 7 [8] The Authority acted on that email and made orders that: 8 (a) Dr Sawyer had breached the terms of the record of settlement; 2 At [65]. 3 At [1]. 4 At [3] [4]. 5 At [7]. 6 Mr Smith, who now acts for Dr Sawyer, did not represent her in the determination referred to. 7 At [9]. 8 At [11].
(b) Dr Sawyer was ordered to comply with all the terms of the record of settlement; and (c) the confidential details of the record of settlement were to remain subject to a permanent non-publication order. [9] The determination left for further investigation the Vice-Chancellor s claim for penalties under s 149(4) and s 135 of the Act. As has already been noted, the determination of 1 November 2017, to which this application relates, dealt with penalties. [10] Dr Sawyer does not accept that the record of settlement on which the subsequent compliance order was based is valid and binding. She has issued proceedings in the Employment Court challenging that determination. Those proceedings have not yet been heard. 9 [11] Dr Sawyer does not accept that the compliance order of 3 March 2017 was properly made. She maintains that her lawyer wrongly, or inappropriately, purported to convey her consent but he was mistaken in doing so because she did not consent. She did not challenge that determination in time and has now applied for an extension of time to do so. That application is yet to be heard while the Court considers a procedural issue as to whether or not privilege has been waived. [12] Against that background, Dr Sawyer has now challenged the 1 November 2017 determination, that she must pay a penalty, and is seeking a de novo hearing. The grounds of that challenge include the following: (a) that the Employment Court is seized of matters in proceedings 144/2017 and 7/2017 and the Authority determination pre-judged those proceedings; (b) the requirements imposed on the Authority by the Protected Disclosures Act 2000; 9 EMPC 7/2017.
(c) the requirements on the Vice-Chancellor and on the Authority of obligations under the United Nations Convention Against Corruption (CAC), Articles 5, 7 and 9; (d) the requirements on the Authority to consider Dr Sawyer s rights under the Bill of Rights Act 1990; and (e) that some of the affidavit evidence submitted by the Vice-Chancellor in support of the application is incorrect. [13] At the same time as Dr Sawyer filed her challenge she filed a memorandum explaining her application for urgency. A brief passage stated her reasons for this application. She said the Authority imposed a penalty on her in short course including of within 14 days of 1 November 2017 and that would impede her seeking relief in her challenge to the determination. In the same passage she said that the determination is impracticable because she was about to leave Wellington for Dunedin to care for her daughter who is to have surgery. I have inferred from this latter statement that she considers her personal circumstances justify urgency being granted. [14] When I discussed this application with Dr Sawyer s counsel, Mr Smith, at a telephone conference on 7 November 2017 convened to hear any further submissions to support this application, he confirmed that he had nothing further to add. Power to grant urgency [15] Clause 21 of sch 3 confers on the Court jurisdiction to grant urgency. That clause reads: 21 Urgency Where any party to any proceedings applies to the court to accord urgency to the hearing of the proceedings, the court must consider that application and may, if satisfied that it is necessary and just to do so, order that the proceedings be heard by the court as soon as practicable. [16] There are two grounds in Dr Sawyer s memorandum to support her application for urgency. The first ground was that the Authority imposed a penalty
requiring her to pay it within 14 days, as noted in [13]. I assume this statement means Dr Sawyer considers her application for a stay needs to be urgently considered because of the time for payment imposed by the Authority. [17] In fact, the determination requires payment within 28 days of 1 November 2017, not 14 days. The only reference to 14 days is to costs, where the Authority provided time for the Vice-Chancellor to apply for them. Dr Sawyer has a similar amount of time to respond to any costs application that is made. [18] The second ground is Dr Sawyer s need to care for her daughter. Her application records the need for her to travel to Dunedin. No other details are provided explaining why this travel, and need to be in Dunedin, means urgency must be granted. The information provided is inadequate to allow a conclusion to be drawn that her absence from Wellington necessitates dealing with the application for a stay urgently. There is no reason to conclude that during her time in Dunedin Dr Sawyer will be incapable of providing instructions to her counsel or, if she chooses to do so, taking steps in the proceeding herself. [19] The grounds relied on do not support granting urgency and the application is declined. [20] The Registrar is to arrange a telephone directions conference with the parties for the purposes of issuing directions to consider the application for a stay. [21] Costs are reserved. Judgment signed at 11:50 am on 13 November 2017 K G Smith Judge