Posted on: Oct 23, 2014
The likelihood for confusion to occur over when the 28 days for filing a challenge to an Employment Relations Authority determination expires has been much reduced by a recent decision of the Employment Court. In making its decision, the Court refused to follow the earlier decision of the Court in Vice-Chancellor of Lincoln University v Stewart.
Difficulties have arisen in situations in which the Authority has made its determination late in the year. Section 179(2) of the Employment Relations Act 2000 gives 28 days for filing a challenge to a determination. The Lincoln University case said that reg 74B(2) of the Employment Court Regulations, which excludes the period from 25 December to the close of 5 January in the calculation of times but is subject to “an express provision in any Act”, was inconsistent with the express provision in s 179(2) and therefore ineffective or ultra vires the power under which it was purportedly made.
Recognising the presumption of validity of subordinate legislation, the Employment Court has now given an opposing view. It considers that the regulation (along with reg 74A which allows things to be done upon the reopening of the Court registry where they are meant to be done but the registry is closed) simply gives effect to practical realities in the employment jurisdiction. A factor in the formation of this view was that, if the legally trained could get the dates wrong, how could the self-defended or the lay representative hope to get it right?
New Zealand Air Line Pilots’ Association v Airways Corporation of New Zealand Limited (2014)
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