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...

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