23/08/2021·1 min to read

Supreme Court opens door for tort claims to be heard in the Authority

Last Friday the Supreme Court released a significant ruling in FMV v TZB, which effectively opens the door for claims founded on torts to be heard in the Employment Relations Authority (Authority), so long as they arise from an employment relationship.

In this case, FMV (a former employee of TZB) commenced personal grievance proceedings in the Authority (well out of time it appears) and also filed a separate tortious claim in the High Court (alleging negligence against her employer, claiming she suffered psychiatric harm through unsafe work practices/bullying etc).

ZB, the employer, successfully applied to strike out the High Court proceedings, on the grounds that only the Authority has jurisdiction to hear FMV’s claims.

FMV appealed the decision and ultimately the Supreme Court dismissed her appeal. The Supreme Court considered s 161(1)(r) Employment Relations Act, which provides that the Authority has jurisdiction to consider any action arising from an employment relationship “other than an action founded on tort”. The majority of the Supreme Court (Glazebrook J dissenting) held that if the problem relates to or arises from an employment relationship, then the problem must be dealt with in the Authority, regardless of how it is framed.

At para [134] the Supreme Court held: “FMV may not bring tort proceedings in the High Court in relation to what is, in light of our conclusion …  an employment relationship problem. They can be framed as personal grievances, so do not fall within the tort exception in s 161(1)(r). Rather, she must pursue her claims in the Authority”.

This is a significant ruling which could have wide implications and all employers and HR practitioners should take note of it. Please get in touch with our contacts if you would like to discuss the case and its impacts in more detail.


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