Ruling finds no justiciable legal errors by Employment Court judge
Declining a former employee’s application for leave, New Zealand’s Court of Appeal held that a judge of the Employment Court used an orthodox application of the pertinent legal principles and statutory provisions and committed no discernible error in her reasoning.
In VXO v Health New Zealand [2026] NZCA 84, the respondent used to employ the applicant. The ex-employee claimed unjustifiable dismissal and unjustifiable action against his former employer.
Judge Joanna Holden of the Employment Court rejected the former employee’s claims. Seeking to appeal the Employment Court’s decision, the ex-employee applied for leave to appeal.
In support of his leave application, the former employee filed numerous documents, including a memorandum with 19 headings with sub-clauses, which asserted multiple legal errors.
If the appeal court refused the leave application, the former employer would request costs.
While granting an extension of time, the Court of Appeal of New Zealand declined leave to appeal based on the former employee’s failure to meet the applicable statutory test.
The appeal court ordered the ex-employee to pay his former employer costs for a standard application on a band A basis, plus the usual disbursements.
Given that an appeal to it from an Employment Court decision was not an appeal as of right, the appeal court explained that the former employee should first obtain leave to appeal under s 214 of the Employment Relations Act 2000.
To do so, the ex-employee should establish that his proposed appeal raised a legal question that he should submit to the appeal court based on its general or public importance or for any other reason.
Regarding the requested extension, the appeal court acknowledged that the former employee was late in applying for leave to appeal. However, the appeal court saw a reasonable explanation for the delay, which was short enough that it could not have prejudiced the former employer.
Next, the appeal court held that an appeal to it under the Employment Relations Act could not serve as a vehicle to re-litigate unfavourable factual findings.
Upon considering the documents filed by the ex-employee, the appeal court found that some asserted errors involved allegations that pertained more to the former employer’s conduct and processes, rather than the Employment Court’s decision.
The appeal court noted that the alleged errors more directly related to the Employment Court hearing and decision involved issues of breach of procedural fairness, bias, evidentiary imbalance, and the application of the wrong standards for misconduct.
The appeal court accepted that the former employee personally considered all these issues important. However, the appeal court said none were issues of general or public importance. The appeal court added that the issues were all case-specific.
Moreover, insofar as the allegations essentially involved how much weight the judge placed on the evidence and findings with an evidential foundation, the appeal court ruled that they were either not seriously arguable or not justiciable legal errors.
Lastly, the appeal court found the former employer entitled to costs.
