Court of Appeal denies leave to appeal Employment Court ruling involving summarily dismissed worker

Before the Court of Appeal, the applicant applied for leave to appeal and for a stay. 

The Employment Court partly granted a stay. This meant that the applicant would not reinstate the respondent to the workplace but would keep him on the payroll until the outcome of the leave application. 

Court of Appeal denies leave to appeal

In dismissing the leave application, the appeal court ruled that the applicant’s proposed questions: 

• did not satisfy the statutory criteria 
• did not constitute legal questions pursuant to the principles stated in Bryson v Three Foot Six Ltd [2005] NZSC 34 
• did not challenge the Employment Court’s articulation of the relevant law and instead challenged the law’s application to the facts 

However, the appeal court permitted the parties to file costs memoranda. 

Leave denied on proposed questions

Addressing the specific proposed questions, the appeal court explained that: 

• Whether the Employment Court made factual findings regarding the substantive issue of whether the conduct was properly characterised as performance instead of misconduct at an interim stage was not a legal question and was not supported by a fair reading of the judgment 
• How the Employment Court applied the balance of convenience test was not a legal question or one of wider or public importance 
• How the Employment Court evaluated and weighed particular evidence was not a legal question or one of wider or public importance 
• The reinstatement order’s terms did not engage a legal question or one of wider or public importance 

Jurisdictional issue

The appeal court addressed whether the combined operation of the following ERA provisions precluded the Employment Court’s jurisdiction to hear a de novo or other challenge to the Authority’s refusal to order interim reinstatement: 

• s 161, which gave the Authority exclusive jurisdiction to make determinations about general employment relationship problems, including s 127 interim reinstatement orders under s 161(p) 
• s 127(7), which allowed the court to grant an interim injunction reinstating an employee if seized of the personal grievance proceedings 

In this case, the appeal court noted that the Authority, not the Employment Court, remained seized of the personal grievance proceedings. 

Given the Employment Court’s general right to challenge the Authority’s written determinations under s 179, the appeal court did not find it seriously arguable that the Employment Court lacked jurisdiction to hear a de novo challenge to the Authority’s interim reinstatement determination. 

Based on s 127’s wording, the appeal court held that s 179(1) covered an interim reinstatement order, which was a relevant “determination.” 

Court of Appeal’s other employment-related cases

Here are some other recent decisions by the Court of Appeal of New Zealand involving employment and labour matters. 

Subject to certain conditions, the appeal court issued a 14 May 2026 decision permitting Air New Zealand to appeal on three legal questions identified in its application for leave arising from an Employment Court decision in favour of one of its captains. 

In a proceeding involving an attempt to recover wage or holiday arrears, the appeal court made a 25 March 2026 decision granting an application to recall its prior judgment awarding a labour inspector costs, to be paid by a person legally aided at the time. 

Declining a former employee’s application for leave, the appeal court issued a 24 March 2026 decision holding that an Employment Court judge used an orthodox application of the pertinent legal principles and statutory provisions and committed no discernible error in her reasoning. 

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