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Accident Compensation Cases

Transtec (A Trading Division Of Railfleet) v Pona (EMC, 22/03/93)

Judgment Text

PALMER J:
Introduction 
In this particular appeal Transtec has appealed against the decision of the Employment Tribunal granting leave to the respondent, pursuant to s 33(4) Employment Contracts Act to submit his personal grievance to Transtec, enabling it to be dealt with in accordance with the procedures provided for within the New Zealand Rail Ltd Collective Employment Contract dated 23 May 1991. 
In its decision which was delivered on 11 November 1992, the Tribunal held that, notwithstanding the substantial delay that had occurred, leave should be granted to Mr Pona to submit his contended personal grievance to the appellant. The respondent had been dismissed from his employment with the appellant on 16 August 1991 and his application to his former employer to accept the very belated submission of his contended personal grievance allegedly comprising unjustifiable dismissal by Transtec was not made until the respondent sought to submit his contended grievance to the appellant on 25 May 1992. Transtec declined to accept the submission of the respondent’s alleged grievance which was so appreciably out of time. 
The Tribunal’s decision and the material background to the application for leave 
Mr Pona was dismissed on 16 August 1991 for making a serious but unsubstantiated allegation against a leading hand employed by the appellant. This particular allegation was that the leading hand had smoked marijuana at work. Transtec, through its personnel manager, Mr Peter McGregor, investigated this particular allegation and concluded that it was unfounded in fact and comprised a retaliatory response by Mr Pona to a disciplinary hearing affecting him upon the legitimate complaint of the leading hand concerned. 
Mr Pona was represented by a union delegate (Mr Moody) during the disciplinary proceedings affecting the respondent and which concerned his (Mr Pona’s) complaint against the leading hand. The adjudicator (Mr W R Grills) held that Transtec, through Mr McGregor, followed the grievance procedure provided for in New Zealand Rail’s collective employment contract. Mr Pona’s contentions against the leading hand were, I now emphasise, held unreliable by Mr McGregor, who viewed the making of the allegation as serious misconduct by the respondent. Mr Pona was dismissed. 
At the conclusion of the meeting when the dismissal was effected Mr McGregor did not inform Mr Pona: 
“that the matter could be taken further, that he had rights under the collective contract, and that he could contest his dismissal before the Tribunal. Neither did the union inform him of the legal position. Mr Moody who was the union delegate present at the dismissal testified that he failed to inform Mr Pona because it had slipped his mind. Mr Moody admitted that this has been his one mistake in handling the dismissal. Mr Pona testified that the matter had been discussed with Mr Neil Cruden who is the senior union official at the site. Mr Cruden concluded that the matter had been handled satisfactorily. Again Mr Pona was not informed of his legal rights. Mr Pona testified that he was told [by Mr Cruden] that the leading hand’s father was a sergeant with the police force and there was nothing that could be done about the dismissal. ”
(Page 2 of the Tribunal’s decision refers.) 
Mr Pona, who the Tribunal held was deeply aggrieved by his dismissal, subsequently undertook training in an Access scheme. The adjudicator further held that in April 1992, during a discussion which the respondent had with the supervisor of the Access scheme, the subject of the dismissal was broached. The Tribunal further held that in these discussions Mr Pona learned that he had exercisable rights to pursue a contended personal grievance before the Employment Tribunal. The adjudicator further held that the respondent “immediately consulted with the Community Law Centre who referred him to Mr Fraser, his counsel” (p 2 of the Tribunal’s decision refers). 
The Tribunal then held that: 
“Counsel on behalf of Mr Pona wrote to Transtec Hillside on May 25, 1992 requesting that Transtec waive the 90 day limitation as to the submission of personal grievances. Mr Pona had been dismissed from employment on August 16, 1991. He is required by section 33(2) to submit his grievance within a period of 90 days, the period in Mr Pona’s case expiring on November 13. The company received the request over six months after the date of dismissal. On June 9 the company wrote back to Mr Pona’s Counsel and refused the request. The company’s letter said: 
‘Bearing in mind that Mr Pona’s then union representative[s] found his dismissal [to be] fully justified, we have decided to decline your request. ’”
(Page 2 of the Tribunal’s decision refers.) 
Mr Pona’s application for leave to submit his personal grievance to Transtec was made to the Tribunal at Dunedin on 3 July 1992. 
Section 33 Employment Contracts Act, with particular emphasis on subss (3) and (4), provides: 
33. Right to use procedures—(1) The personal grievance procedures shall apply to the employee or employees bound by the employment contract that contains the procedures. 
(2) Every employee who wishes to submit a personal grievance to that employee’s employer in accordance with the applicable personal grievance procedure shall, subject to subsections (3) and (4) of this section, submit the grievance to that employee’s employer within the period of 90 days beginning with the date on which the action alleged to amount to a personal grievance occurred or came to the notice of the employee, whichever is the later, unless the employer consents to the personal grievance being submitted after the expiration of that period. 
(3) Where the employee’s employer does not consent to the personal grievance being submitted after the expiration of the period of 90 days specified in subsection (2) of this section, the employee may apply to the Tribunal for leave to submit the personal grievance after the expiration of that period. 
(4) Where, on an application under subsection (3) of this section, the Tribunal, after giving the employee’s employer an opportunity to be heard,— 
(a)
Is satisfied the delay in submitting the personal grievance was occasioned by exceptional circumstances; and 
(b)
Considers it just to do so,— 
the Tribunal may grant leave accordingly, subject to such conditions (if any) as it thinks fit. ”
During its decision the Tribunal, in addressing whether there were “exceptional circumstances” which occasioned Mr Pona’s delay in submitting his contended grievance to Transtec, had recourse to the principled approach explained by Travis J in MacDonald v Health Technology Ltd [1992] 2 ERNZ 735. The adjudicator, in concluding that “exceptional circumstances” led to the respondent’s delay in submitting his contended grievance to Transtec on 25 May 1992, explained why he was of this view, namely: 
“Mr Pona had sought advice from his union, who had pursued the matter within the grievance procedures in the collective contract to which the union was party. Mr Pona was told that the matter could not be pursued further. Mr Pona testified that the matter could not be pursued because the leading hand’s father was a policeman, and a friend of the general manager. This is not to say that the leading hand’s father would endeavour to influence the general manager. There is no evidence whatsoever that a policeman would act improperly, or that the leading hand would ask his father to act improperly. But there was uncontradicted evidence that Mr Pona was told this, and believed this. I accept that Mr Pona could understand English within limitations, and has been in New Zealand for some period of time. He would have a limited understanding of custom, and the operation of the legal system. However, the impression of the evidence given by Mr Pona lead [sic] me to the conclusion that he accepted at face value the advice given him. Further, it was logical to assume that the advice was correct. The advice came from a source which undoubtedly knew the law which surrounded and followed from the collective contract. The source was a union representative, and the union was a party to the collective contract. 
Once having learned from sources at the access training scheme that he might be able to pursue the matter, Mr Pona went to the local community law centre, and then to his lawyer. Given the proper explanation of his entitlements, he acted promptly. His diligence cannot be questioned, and the general admonition regarding promptness and ignorance of the law cannot be said to apply. The exceptional circumstances are that Mr Pona approached an appropriate authority, a senior union delegate, and was given incorrect advice as to his avenues for pursuing the grievance. There is absolutely no evidence, I would reiterate, to suggest that the leading hand’s father would in any way act improperly in respect to Mr Pona’s pursuit of his personal grievance. The correct advice from the senior delegate should have been that Mr Pona could pursue the grievance before the Employment Tribunal. That advice should have been given, even if the union had decided not to represent Mr Pona. 
The Oxford English Dictionary defines ‘exceptional’ in the following way: 
‘Of the nature of or forming an exception; out of the ordinary course, unusual, special. ’
While the senior union delegate did not give evidence, I have carefully considered the words of Mr Pona’s testimony, and the words of his interpreter who assisted at the hearing. My consideration is not solely in respect to the wording of a transcript, but also to the demeanour of both Mr Pona and the translator. The senior delegate may or may not agree with Mr Pona’s recollection of his advice. That is irrelevant because the senior delegate was not called to give evidence. I am convinced on Mr Pona’s evidence that he received inaccurate and unnecessarily discouraging advice from a source upon which any reasonable man would have relied. That is an unusual event, out of the ordinary course, and not only exceptional, but extraordinary. ”
The appeal 
In its notice of appeal Transtec has particularised its grounds of appeal thus: 
“1.
That in fact and in law the Appellant is not bound to inform a dismissed employee that ‘the matter could be taken further, that [the employee] had [personal grievance] rights under the collective contract’
2.
That the Respondent admitted to having a copy of his applicable collective employment contract; 
3.
That that collective employment contract contains the personal grievance ‘rights’ alleged to have been the obligation of the Appellant to convey to the Respondent; 
4.
That with due diligence the Respondent could have made himself aware of his personal grievance ‘rights’ but did not do so; 
5.
That a supposition that the Applicant [sic] was bound to inform the employee of his personal grievance ‘rights’ wrongly influenced the decision to allow the Respondent’s appeal; 
6.
That the existence of exceptional circumstances was decided on the acceptance of hearsay; 
7.
That the hearsay was accepted because ‘there was uncontradicted evidence that Mr Pona [the Respondent] was told this’
8.
That an onus rested with the Respondent to call as a witness the person to whom the hearsay was attributed to confirm or deny the Respondent’s claim; 
9.
That the Respondent could have called that person as a witness but did not; 
10.
That the Respondent did not give to the Appellant notice that he would make a claim that the [sic] he expected the Applicant to contradict; and 
11.
That in consequence the decision of the Tribunal has gone awry. ”
During the course of his submitted argument Mr Enright sought to introduce, as further evidence which should be taken into account upon the hearing of the appeal, an affidavit sworn by Mr Neil Cruden, the branch secretary for Dunedin of the National Union of Railway Workers. Mr Fraser formally objected to the Court receiving and having regard to this particular affidavit for the purposes of the appeal. I received this affidavit subject, I now stress, to counsel’s objection to its admissibility, given the scheme of the Employment Contracts Act concerning appeals from the Employment Tribunal to this Court, which is explicitly plain through s 95 Employment Contracts Act, and especially s 95(4)(b). I received the affidavit subject to counsel’s objection so that I could ascertain what particular facts Mr Cruden was deposing to. I confirmed during the hearing to both Mr Enright and Mr Fraser that I would duly rule upon counsel’s objection and Mr Enright’s argument as to why — notwithstanding s 95(4)(b) Employment Contracts Act — I should rule the affidavit admissible for the purposes of the appeal. In short, the “evidence” which the appellant sought to introduce and rely upon through Mr Cruden’s affidavit, was that he (Mr Cruden): 
(i)
Did not, contrary to Mr Pona’s account, make to the respondent the statements attributed to Mr Cruden by Mr Pona concerning the leading hand’s father being a police sergeant and a friend of Transtec’s general manager, thus rendering the pursuit of any challenge to the respondent’s dismissal pointless, and/or 
(ii)
Did not make any statement/s to Mr Pona which could have caused the respondent to believe, through a misunderstanding, anything along the lines immediately traversed in para (i). 
I now confirm, for reasons I shall subsequently enlarge upon, that I am unprepared to formally receive in evidence for the purpose of this appeal the affidavit of Mr Cruden. During his developed argument Mr Enright submitted how and why in his contended view leave should not have been granted to Mr Pona to submit his grievance appreciably out of time to Transtec, pursuant to s 33(3) and (4) of the Act. More particularly, the advocate contended that, given that Mr Cruden was not called as a witness at the hearing before the Tribunal, Mr Pona’s account of what Mr Cruden materially said to him concerning why he should not challenge his dismissal, was inadmissible hearsay which the Employment Tribunal simply should not have acted upon. 
Mr Enright contended that s 79 Employment Contracts Act — and also s 96 of the Act enabling the Tribunal to admit “such evidence as in equity and good conscience it thinks fit, whether strictly legal evidence or not” — must be construed as subject to s 7 Evidence Amendment Act (No 2) 1980. The advocate cited s 7 and emphasised the concluding part of that section, namely: 
7. Admissibility of oral hearsay evidence in civil proceeding—In any civil proceeding where direct oral evidence of a fact would be admissible, any oral statement made by a person and tending to establish that fact shall be admissible as evidence of that fact if the maker of the statement had personal knowledge of the matters dealt with in the statement, and is unavailable to give evidence. ”
(The emphasis was that of Mr Enright.) 
Mr Enright submitted that, because Mr Cruden was physically available to give evidence before the Employment Tribunal if required, Mr Pona could not give hearsay evidence to the Tribunal concerning what Mr Cruden allegedly said to him following his dismissal and the contended futility of the respondent challenging his dismissal (p 5 of the transcript of evidence refers). Thus the advocate argued that it was not legally competent for the Tribunal to act upon Mr Pona’s derivative/hearsay account of what Mr Cruden allegedly said to him concerning the respondent’s dismissal. Mr Enright stressed, within the context of his argument, the dominating importance that the Tribunal attached to Mr Pona’s account of what Mr Cruden said to him as to why the respondent could not effectively challenge his dismissal as comprising, through such misinformation or Mr Pona’s misunderstanding of what he was told, “exceptional circumstances” contemplated by s 33(4) of the Act. 
The advocate further submitted that the Tribunal, in its decision, attached a highly adverse significance to the perceived failure by Transtec to rebut the hearsay evidence given by Mr Pona concerning the statements following his dismissal which the respondent contended Mr Cruden materially made to him. Mr Enright argued that this approach comprised an inappropriate reversal of the onus of proof because it was incumbent upon Mr Pona, if the respondent wished to rely upon what Mr Cruden told him, to call Mr Cruden as a witness to give a primary account of what he materially said to Mr Pona following the respondent’s dismissal. 
The advocate strongly contended that the Tribunal inappropriately treated the omission by both Transtec and the respondent’s union to inform him that he could contest his dismissal in a personal grievance setting before the Employment Tribunal as a form of unfairness when there simply was, Mr Enright argued, no obligation by the respondent’s former employer or officials of his union to inform Mr Pona of his rights following his dismissal in a grievance setting. Mr Enright has submitted — I paraphrase the effect of his submissions — that for particularised reasons the approach followed by the Tribunal in this immediate setting was unsatisfactory. Mr Enright further submitted that the appeal should be allowed or, alternatively, that this Court should direct the Tribunal, pursuant to s 95(5)(a), to hear evidence from Mr Cruden as a material witness and to reconsider the Tribunal’s grant of leave to Mr Pona “in the light of that [Mr Cruden’s] evidence”
Finally, if successful upon the appeal the advocate has submitted that an order as to costs and expenses upon a basis which Mr Enright has quantified should be made in favour of the appellant. 
Mr Fraser, in his developed argument, has contended that the appeal should be dismissed through the Court upholding the Tribunal’s decision. 
As to the affidavit evidence now sought to be introduced by the appellant from Mr Neil Cruden, counsel has submitted that the introduction of this evidence contravenes the scheme of the Employment Contracts Act governing appeals to this Court and, more particularly, s 95(4)(b) of the Act. Mr Fraser submitted — acceptably to me — that the appellant could not reasonably sustain an argument that it (Transtec) “could not, by the exercise of reasonable diligence” have placed the content of Mr Cruden’s affidavit “before the Tribunal” because Mr Cruden was a witness that the appellant could reasonably have called at the hearing. Inarguably, Mr Cruden was available to the appellant as a witness at the Tribunal hearing, had the employer elected to call him, as indeed it did elect to call Mr Moody. It did not do so. Counsel referred to and relied, in an analogous way, upon the principled approach governing the reception of “fresh evidence” in support of an application for rehearing followed by the Labour Court in Dowling (t/a Waiau Discount) v Southland Hotel etc IUOW [1990] 2 NZILR 653. It will suffice for me to now observe the approach which should be followed — consonant with the scheme of the Act concerning appeals from decisions of the Employment Tribunal to this Court — is fully explained by Colgan J in Deka NZ Ltd v Singh [1992] 1 ERNZ 645
Mr Fraser submitted that the gravamen of the Tribunal’s treatment of the omission by Transtec and, surprisingly, officials within Mr Pona’s union to inform him how and why he could challenge his dismissal in a personal grievance setting was simply relevant to the respondent’s explanation that he had not earlier exercised his grievance rights prior to 25 May 1992: 
(i)
Because he (the respondent) was not advertently aware that he had such exercisable rights given that no one — and particularly officials in his union — had so informed him, and  
(ii)
When he fortuitously and at a much later stage during April 1992 was informed that he could challenge his dismissal, he diligently pursued his exercisable rights when he became aware of them. 
Counsel submitted that Mr Pona’s account of what Mr Cruden allegedly said to him following his dismissal as to why the dismissal effectively could/would not be overturned comprised not hearsay evidence but original evidence confirmatory of the respondent’s material state of mind which, because of the statements made to him, significantly impacted upon the respondent’s subsequent actions. In short, counsel submitted that Mr Pona promptly took no steps to challenge his dismissal because he believed, following Mr Cruden’s statements to him, that to so proceed would be futile. As Mr Fraser, in para 10 of the synopsis of his argument, contended: 
“10. For this purpose it is original and not hearsay evidence; 
‘Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.” Subramaniam v Public Prosecutor [1956] 1 WLR 965 at p 969 ’”
[sic — p 970].
Mr Fraser contended that it was “open to the Appellant to dispute the accuracy of the evidence [given by Mr Pona concerning what he alleged Mr Cruden had told him following his dismissal], but it was not mentioned in cross-examining the witness” (para 11 of counsel’s synopsis of argument refers). Furthermore, no formal objection, counsel stressed, was taken by the advocate during the Tribunal hearing concerning Mr Pona’s account of what Mr Cruden had allegedly said to him after the respondent was dismissed. If such an objection had been made then Mr Fraser submitted “the Respondent was in a position to call Mr Cruden” (para 14 of counsel’s synopsis refers). In any event, Mr Fraser submitted, the Tribunal “may accept, admit and call for such evidence as in equity and good conscience it thinks fit, whether strictly legal evidence or not” (para 16 of counsel’s synopsis refers). Mr Fraser submitted the appeal should be dismissed. In this event counsel confirmed that costs should follow the event and he wished, if the respondent was the successful party upon the appeal, to submit a memorandum as to costs to which Transtec, through Mr Enright, could respond. Mr Fraser confirmed that Mr Pona was a legally aided respondent. 
I confirm I have simply summarised the submitted arguments of Mr Enright and Mr Fraser which I have closely considered in their entirety. 
The concluded view of the Court 
I conclude, after reflective consideration, that it was reasonably open to the Tribunal to grant leave to the respondent for the reasons found by it. The Tribunal saw and heard the material witnesses and plainly formed a favourable view of Mr Pona’s credibility as a witness. In an appellate role I have simply not enjoyed that opportunity. 
Mr Pona is a Samoan and had lived in New Zealand for 8 years preceding the hearing in the Employment Tribunal. English is not his mother tongue but he could, the Tribunal held, “understand English within limitations”. I consider it was open to the Tribunal, having seen and heard Mr Pona, to conclude that he “would have a limited understanding of custom, and the operation of the legal system”. These were all factors, I observe, which the Tribunal was entitled to take into account in considering, as part of the material circumstances of this case, why Mr Pona did not seek to exercise his grievance rights against Transtec until 25 May 1992, that is to say over 6 months after he was dismissed by the respondent. Upon the evidence before the Tribunal it is reasonably open to it to conclude that Mr Pona believed, for the reasons he explained during his evidence, that he had no effective rights to challenge his dismissal until he received, during April 1992, advice from his supervisor at the Access scheme he was then attending that he in fact had exercisable rights in a personal grievance setting against Transtec, enabling him to challenge his dismissal in the Employment Tribunal. 
Applications for leave brought pursuant to s 33(4) and (5) Employment Contracts Act occasion a meticulous examination by the Tribunal of the material facts before it to determine whether there are “exceptional circumstances” in any particular case where leave is sought by an “out of time” applicant. With respect, I agree entirely with the approach propounded by Travis J in MacDonald v Health Technology Ltd [1992] 2 ERNZ 735. I simply reiterate that the words “exceptional circumstances” in the context of s 33 of a liberal statute — as Travis J, for the qualified reasons he explained, characterised the Employment Contracts Act because of its expanded personal grievance provisions — should be given an appropriately liberal interpretation reflecting, as Travis J held, contemporary attitudes to such matters. The circumstances must be shown in any particular case to be out of the ordinary; not factors which might affect all cases. Most importantly the circumstances must be evaluated within the factual matrix of each individual case. This principled approach reflected the Tribunal’s approach to Mr Pona’s application for leave. 
In the course of his judgment in the MacDonald case, Travis J exercised qualified analogous recourse to other discretionary areas of the law typified by the expression “extraordinary circumstances” within s 14 Matrimonial Property Act 1976, and the expression “in very exceptional circumstances” provided for within s 71 Accident Compensation Act 1982. I would add to his Honour’s list by now referring to the expression special reasons relating to the offence” (the emphasis is mine) within the present context of s 30AB(1) Transport Act 1962, and the provision “except in exceptional circumstances” within the first proviso to s 17(2)(e) of the previously enacted Legal Aid Act 1969. As the Court of Appeal, in its judgment delivered by Cooke J, as he then was, stressed in Bell v Ministry of Transport [1983] NZLR 229 at p 232, when considering the expression “special reasons relating to the offence” which was then enacted within s 30(3) Transport Act 1962: 
“It is dangerous to try to evolve rules for exercising a statutory discretion conditioned by ‘special reasons relating to the offence’. ”
This is plainly so because a meticulous examination of the facts is, I stress, required in each case where “special reasons relating to the offence” are in contention. A case by case basis of approach is necessarily called for. This, I observe, has been the approach followed in a consideration of what were “exceptional circumstances” within the first proviso to s 17(2)(e) Legal Aid Act 1969 (now repealed). 
It was, I hold, plainly competent for the Employment Tribunal to receive in evidence, pursuant to s 96 Employment Contracts Act, Mr Pona’s account of what he contends Mr Cruden materially told him following the respondent’s dismissal. I do not accept Mr Enright’s argument that this section of the Employment Contracts Act must be read subject to s 7 Evidence Amendment Act (No 2) 1980. Quite independently of my concluded view in this setting however, I accept Mr Fraser’s argument — and for the reasons advanced by counsel — that the evidence received from Mr Pona in this immediate context concerning what he alleged Mr Cruden materially said to him is not in law hearsay evidence but original evidence purposefully given by Mr Pona to explain his state of mind and why he subsequently acted as he materially did. 
In my view, following my close and reflective consideration of this appeal and the opposing arguments of Mr Enright and counsel, I conclude there is no substance in the appeal. Accordingly it must be, and is now, formally dismissed. For completeness I confirm that within my exercisable discretion, I am unprepared to direct, as the appellant has sought in the alternative, that the Tribunal, pursuant to s 95(5)(a), should, upon my direction, hear Mr Cruden as a witness in a leave setting and reconsider its decision in the light of his evidence. This course impresses me as inappropriate, just as in my considered view it is quite inappropriate that I should formally receive in evidence Mr Cruden’s affidavit as evidence before the Court for the purpose of this appeal in addition to the transcript of evidence heard by the Tribunal. 
Costs 
I direct that Mr Fraser shall, as soon as practicable, submit a memorandum concerning the respondent’s costs and expenses associated with the appeal and copy that memorandum to Mr Enright. In turn, Mr Enright shall submit an opposing memorandum to the Court and provide counsel with a copy of it. 

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