NZALPA Solicitor, John Hall

In his own inimitable style, John reflects on a recent Supreme Court ruling expanding the jurisdiction of the Employment Relations Authority.

The late Roman general Belisarius was sent to defeat the Goths of Italy and succeeded in besieging their King Witigis in the city of Ravenna. Seeing that the Goths were on the verge of defeat the emperor sent terms for peace agreement. Under those terms the Goths were to be reduced to Northern Italy only, while the Romans would content themselves with the rest of the peninsula. The Goths, as history relates, were happy with these terms too.

However, the general Belisarius saw that it was within his power to totally defeat the Gothic Kingdom. He refused to allow the terms of peace to be implemented and defeated the enemies of Rome up until the border of the Kingdom of the Franks.

What Belisarius did not know was that the emperor was anxious for his return because he needed him to fight the perennial enemy of Rome, the Persians. In absence of the general, the Persians proceeded to sack Antioch and severely damaged the surrounding countryside. By the time Rome was finally able to mobilise against the Persians, the Franks – now facing Rome’s borders directly – began agitating with what remained of the Goths. In the long form of history, while Rome’s attention was drawn to the East, over the next centuries the Goths and the Franks, and then the Lombards and Normans, successfully undermined Roman influence on the Italian peninsula until it was completely unsustainable. Meanwhile, the damage done to the eastern provinces while Belisarius was unable to defend them contributed to the inability of Rome to defend them against conquest by the Arabs.

Flushed with chances for substantial success, Belisarius had allowed himself to become prey to the tendency to trust information that we already believe, and to discount information that goes against what we believe. Recent events have demonstrated the dangers of allowing ourselves to become primed to over reacting to the stimuli that we most fear. But the risk in such approach lies not only when we fear we may be overwhelmed by our challenges, but also when we feel we are on the cusp of final success.

As if to demonstrate the magnanimity of judicial system, the Supreme Court has recently found itself settling an old score through demonstrating its imperviousness to such confirmation bias. It has been a while since the Court of Appeal described the Employment Court’s approach to good faith obligations with the words, “the pen may have slipped in this part of the judgment.” ¹ However, it may be welcome news to many in employment law that the Supreme Court has passed a massive vote
of confidence in the Employment Relations Authority by its ruling on the Employment Relations Authority’s jurisdiction: “All that matters is whether the controversy arose during the course of the employment relationship and in the work context.” ²

Doubtless there will be many nuances to this ruling. And practitioners who hear it with elation, like myself, would do well to guard against confirmation bias. However, one does have to wonder how the following statement by the High Court will turn out: “The applicant’s arguments seem to be that the Employment Relations Act gave the Authority and Employment Court exclusive jurisdiction in relation to anything to do with aspects of the employment relationship. This is clearly not the case.” ³

This present administration has so far been a good friend to workers. The Supreme Court’s expansion of the Employment Relations Authority’s jurisdiction may well reflect the resulting shifting public consciousness. It would, however, be useful for us all to wonder whether we are susceptible to confirmation bias.

¹ Christchurch City Council v Southern Local Government Officers Union Inc [2007] NZCA 11 at [55] 2 FMV v TZB [2021] NZSC 102 at [94]
³ GF v Minister of COVID-19 Response [2021] NZHC 2526 at [117]