Andrew Angus v Ports of Auckland Ltd Nzempc Ak

• Jurisdiction: New Zealand
• Court: Employment Court
• Judge: G L Colgan
• Judgment Date: 05 October 2011
• Date: 05 October 2011

In The Matter of Proceedings Removed from the Employment Relations Authority

And In the Matter of an application for Interim reinstatement

BETWEEN

Andrew Angus

Plaintiff

and

Ports of Auckland Limited

Defendant

[2011] NZEmpC 125

ARC 69/11

IN THE EMPLOYMENT COURT AUCKLAND

Counsel:

Simon Mitchell, counsel for plaintiff

Richard McIlraith and Kylie Dunn, counsel for defendant

INTERLOCUTORY JUDGMENT OF CHIEF JUDGE G L Colgan

1 The issue for determination now is whether Andrew Angus should be reinstated in employment with Ports of Auckland Limited (POAL) until his personal grievance (unjustified dismissal) is decided by this Court.

2 Mr Angus grievance and his application for interim reinstatement have been removed to the Court for hearing at first instance by the Employment Relations Authority 1 at its own instigation as it is now entitled to do. That was not only because this is one of the first cases in which the new test of justification for dismissal under s 103A of the Employment Relations Act 2000 (the Act) has arisen for consideration in the Authority but, more immediately, because this is one of the

first cases in which the new test for reinstatement in employment is for consideration under s 125.

3 The issues for decision are, therefore:

• • whether the plaintiff has an arguable case that he was dismissed unjustifiably as that is now defined by new s 103A of the Act;

• • whether the plaintiff has an arguable case for reinstatement in employment (applying the new test for reinstatement under s 125 of the Act) if he is found to have been dismissed unjustifiably;

• • where the balance of convenience lies between the parties in the period until the Court's judgment is given on those issues; and

• • whether the overall justice of the case dictates that interim reinstatement in employment is appropriate.

4 This interlocutory judgment cannot and does not determine (and certainly not authoritatively) what these new sections mean. That is because of the tests (set out above) applicable to an application for interim reinstatement which are the same as the tests for interlocutory injunctive relief in other proceedings. Mr Angu's application for interim reinstatement has been brought on, heard, and decided at short notice. The only evidence before the Court is on affidavits filed by each of the parties. There has been no cross-examination of witnesses (as may be a particularly important feature of this case) and the parties have not had the usual opportunity to present detailed submissions about the law and the new law in particular.

5 Nevertheless, even at this stage, the Court must take account of the new state of the law. Parliament has changed the previous position and, in very general terms, has both sought to make it easier for employers to justify dismissals and to make it more difficult for employees to be reinstated if they have been unjustifiably dismissed. That much can be said uncontroversially. Precisely how the Court (and the Authority) are to go about applying the new rules in particular cases will have to wait until this case is decided substantively.

6 I start with the defendant's stated grounds for Mr Angus's dismissal. These were set out in a letter to him dated 8 September 2011 as follows:

• RE: OUTCOME OF DISCIPLINARY INVESTIGATION

• 1. The purpose of this letter is to confirm my final decision in terms of an appropriate disciplinary outcome following my finding that you committed serious misconduct.

• 2. In response to my letter of 7 September 2011 (which set out the finding of the disciplinary investigation and my preliminary view in terms of an appropriate disciplinary outcome), your representative, Simon Mitchell requested that I take a series of additional points into account before reaching a final decision.

• THE NATURE OF THE NOTES

• 3. It was submitted that you wrote the note out of silliness, it was a joke that went wrong and you did not consider it would cause offence. You also confirm your willingness to attend an anti-racism workshop in order to assist you in the future.

• 4. As previously stated PoAL regards the document as a written application, not a note. Your explanation is consistent with your earlier written statement of 5 September 2011. In that document you described the document as flippant and foolish.

• 5. My view remains that your conduct was inappropriate and unprofessional, and [breached] your obligations to PoAL. You breached PoAL's values, PoAL's Sexual Harassment and Bullying in the Workplace policy, and clause 4.2.7(i) of your CA by behaving in [an] offensive manner.

• 6. The damage from your action at PoAL has already been done, attending an anti-racism workshop for your future personal development should be something you undertake regardless of the outcome of this process.

• SERVICE RECORD

• 7. At paragraph 35 of my 7 September 2011 letter to you I confirm that I had taken your service with the company into account in arriving at this preliminary view.

• DEPRESSION

• 8. In this section you state that during a previous investigation into allegations of sexual harassment made against you by another employee in November 2010, you began treatment for depression that included sleeping medication.

• 9. This situation was never raised at that time or subsequently when following another disciplinary investigation you were placed on a Performance Improvement Plan. The process continued until March 2011.

• 10. Further you did not provide this as an explanation or mitigating factor at any of the first three meetings held to investigate this current situation or the two written statements you provided to PoAL during this process.

• 11. The first occasion the issue of your depression has been raised with PoAL is following the letter of 7 September that confirmed my preliminary view that you be summarily dismissed for serious misconduct.

• 12. Thus while I am genuinely concerned to hear of this condition, I find it difficult to accept that it contributed to or explains your actions in this case. [Your] decision to write the anonymous application form was well thought out and deliberate, not a spontaneous, spur of the moment action.

• 13. I believe you would have raised this matter as a mitigating factor far earlier in this disciplinary investigation and on other occasions if there was a direct link. Thus while you may indeed have symptoms of depression, they are not excuse for the deliberate and premeditated actions that you took in writing and then placing an anonymous application letter with offensive and racist comments under the office door of Ms Bush. Therefore I reject your suggestions under this heading

• VIEW OF EVENTS

• 14. You state that you deeply regret any offence that has been caused and are willing to take any step to remedy the situation. Unfortunately there are some outcomes from your action that you simply cannot control or remedy.

• 15. Your behaviour was significant breach of PoAL's values and your obligations as an employee. This is a situation where an apology is simply not enough.

• CONCLUSION

• 16. I agree with [your] comments that you ?acted foolishly?. I accept that you now greatly regret any offence caused. However I do not agree that given all the circumstances dismissal is too harsh a response to the serious misconduct.

• 17. The test of justification is “what a fair and reasonable employer could have done in all the circumstances at the time of the dismissal”

• 18. Following receipt of your 7 September 2011 letter, PoAL met with your representative, Simon Mitchell and offered the following option:

  • • The opportunity for you to resign

  • • Provision of a one off payment of $5,000 under section 123(c) (i)

  • • Recording this outcome in a confidential Settlement Agreement as full and [final] settlement of all matters in relation to your employment filed with the mediation Service

  • • Provision of a certificate of service to you

  • • Agreement that both parties would only make positive statements about the other, and would not make any disparaging remarks about the other to any third party.

• 19. Subsequently PoAL was advised that this offer was rejected prior to our meeting this morning at 8.15 am today.

• 20. At this meeting I again confirmed this option was available, however it was again rejected.

• 21. Consequently I confirmed my final decision was that in the circumstances summarily dismissed from your employment with PoAL was the most appropriate outcome. This letter serves as written confirmation of this decision.

• 22. As stated at the meeting, your final pay will be calculated up to the end of your shift today and will be credited into your nominated bank account in the next 24 hours along with any outstanding leave. I will arrange to obtain any other company property from you via your representative

7 Mr Angus has worked on the Auckland waterfront for POAL and its predecessors as a stevedore for more than 19 years. He had a satisfactory work record and there is certainly no suggestion of similar conduct to that which led to his summary dismissal last month.

8 The context of the dismissal includes the recent engagement by POAL, as part of its stevedoring workforce, of a number of employees originally from Tuvalu. 2

9 On Sunday 7 August 2011 Mr Angus pushed a sheet of paper under the closed office door of a POAL administrator, Karyn Bush. The content of this single handwritten sheet of paper is at the heart of the case and so I set it out in full (complete with misspellings) as follows:

To karyn Bush

C/- Ports of Auckland

ki ora bro,

I wish to make application for the position of ship Leading Hand. I feel too intellegant to drive straddles all my life. If it helps I can do a month or two on the sunbeds. Next week I can float to Sunday morning of you.

My great grandfather was one of the priests for the Island of Tualvau and he taught them...