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Back Home 5 News 5 Defeated restaurant owner loses bid to challenge Employment Court decision in Court of Appeal

Defeated restaurant owner loses bid to challenge Employment Court decision in Court of Appeal

30 Mar 2023

| Author: Fiona Wu

Employment Relations Act 2000 – Application for leave to appeal to Court of Appeal against decision of Employment Court – Employment Court overturned decision of Employment Relations Authority – found personal grievance for unjustified dismissal established – appeal grounds include scope of s 142ZA (attribution of personal conduct to company) and s 142Z (attributing to another state a person’s state of mind) – no question of general or public importance raised – leave criteria not met – application dismissed.

Saena Company Ltd v Kang [2023] NZCA 50 (French and Mallon JJ) 

Saena Company Ltd (Saena) operated a sushi restaurant in Whangarei.  Mr Hwang is Saena’s sole director and works in the restaurant with his wife, Ms Weon, who is the head chef.

Mr Kang and his wife Ms Chung both worked at the restaurant.  A confrontation ensued between Ms Weon and the couple which resulted in both Mr Kang and Ms Chung’s dismissal from their roles.

The Employment Relations Authority found no unjustified dismissal nor disadvantage.  On appeal, the Employment Court found that Mr Kang’s dismissal grievance was established and ordered Saena to pay Mr Kang lost wages and compensation totalling over $23,300.

Saena sought leave to appeal on four questions: 1) whether the Employment Court erred in applying s 142ZA of the Employment Relations Act 2000 (ERA) in the grievance jurisdiction; 2) whether the Employment erred in applying the test in s 142Z of the ERA; 3) whether the Employment Court failed to consider the social and cultural framework and language used by the parties; and 4) whether the Employment Court applied an objective test and considered all evidence in determining whether a dismissal took place.

Applicable principles – Criteria for leave to appeal to Court of Appeal – ss 142Z and 142ZA of Employment Relations Act 2000 – s 214(1) of Employment Relations Act – test for dismissal – attributing to another a person’s state of mind – relevance of social and cultural framework.

Held:  Application for leave to appeal is dismissed.  There is no doubt that s 142ZA applies to the grievance jurisdiction.  Application of the test under s 142Z does not raise a question of general or public importance. Third question does not raise a question of law. Fourth ground is not arguable and does not raise a question of general or public importance.


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