Burtton & Browne v Talley's Group Ltd Chch
 NZEMPC 123
IN THE EMPLOYMENT COURT CHRISTCHURCH
In the Matter of challenges to determinations of the Employment Relations Authority
Steven Zindel, Counsel for Plaintiff
Garry Barkle, Counsel for Defendants
JUDGMENT OF CHIEF JUDGE Gl Colgan
The plaintiffs challenge the determinations 1 of the Employment Relations Authority refusing to grant them interim reinstatement in employment pending the investigation and determination of their personal grievances that they were dismissed unjustifiably by Talley's Group Limited (Talley's). The Authority issued separate determinations for each plaintiff although their contents are largely but not completely identical at least so far as the results and essential reasoning areconcerned. I have dealt with the challenges together, both at the hearing and in this judgment, although the circumstances of each are distinct and will be so addressed.
Damien Burtton and Karl Browne were crew members on one of Talley's ocean going fishing vessels who were dismissed summarily in May 2010 for illegal drug possession, illegal drug use, and illegal drug supply and for reasons of loss of trust and confidence. There is extensive affidavit evidence in support of and in opposition to, the plaintiffs' applications for interim reinstatement in employment. They say that they were disadvantaged unjustifiably in their employment and, subsequently, dismissed unjustifiably in breach of both of the statutory tests under s 103A of the Employment Relations Act 2000 (the Act). They must establish, and say that their cases do establish, that not only do they have arguable cases of unjustified dismissal but that they also have strong cases for reinstatement in employment and not merely monetary compensation for its unjustified loss.
On 12 May 2010 the crew of the defendant's fishing vessel, “Enterprise” were preparing to sail from Nelson on the following day. The defendant arranged for a search of the vessel, and the crew's possessions on it, by a drug detection dog. The dog indicated an interest in the luggage of several crew members including Mr Burtton and Mr Browne and, although there were comprehensive searches of their possessions as well as of the vessel, no illegal drugs were found, either linked to Messrs Burtton and Browne, or more generally.
Each plaintiff was, however, interviewed by company representatives including a private investigator who was formerly an experienced police detective. Mr Browne denied possessing or using narcotics on board the vessel although admitted that he once “did drugs” but had ceased involvement with them a year previously. Mr Browne was suspended from his employment, that is he was stood down from the vessel's crew for the imminent voyage and was required subsequently to attend a further interview with company representatives. His suspension was without pay.
At his separate initial interview, Mr Burtton also denied any knowledge of unlawful drugs on the vessel and any personal involvement in unlawful drug use. At a subsequent interview after he too had been suspended or stood down without pay from vessel's crew, Mr Burtton was asked whether he had made a telephone call to Mr Browne on the day of the search. He replied that he had not. When pressed on the matter, he eventually conceded that he had telephoned Mr Browne.
A representative of the employer searched Mr Burtton's mobile phone and located Mr Browne's name and number in the telephone's memory. Although Mr Burtton explained this by saying that he had these details for the purposes of maintaining contact with shipmates, Talley's did not accept this innocent explanation and formed the view that Mr Burtton had had a longstanding friendship with Mr Browne but had lied about the nature of their relationship during his interview. The defendant says that Mr Browne's details were stored in Mr Burtton's phone's directory in a way that suggested that their acquaintance included a common interest in unlawful drugs.
At a subsequent investigation meeting, following a lengthy suspension, Mr Burtton was faced with allegations that he had been seen using the unlawful narcotic known colloquially as pure methamphetamine, or “P”, whilst at sea and that he had supplied this narcotic to young female crew members. No details of these allegations or of their maker were disclosed to him. Mr Burtton denied these allegations but his denials were not accepted by the employer. Added to its rejection of his explanation of his relationship with Mr Browne, the employer concluded that Mr Burtton should be dismissed summarily as he was on 25 June 2010.
Mr Browne was also told at a subsequent interview that the employer had statements from crew members alleging that they had seen him “do drugs”. Mr Browne denied these allegations. He was then given an opportunity to resign and did so fearing that if he did not, he would be dismissed. He says that in these circumstances his resignation on 18 June 2010 was a constructive dismissal.
The Authority found, on the defendant's own admission, that if Mr Browne had not resigned he would have been dismissed which may tend to confirm the correctness of Mr Browne's assessment that he was dismissed constructively.
In the case of Mr Browne, also, the Authority found it significant that he was suspended for about 4 weeks without pay before he was dismissed constructively. The Authority concluded that Mr Browne had an arguable case that the manner of his dismissal was not how a fair and reasonable employer would have acted in all the circumstances. That related to the employer's refusal to permit Mr Browne to have the assistance of a lawyer in circumstances where, having arranged to travel from Auckland to Nelson to attend a meeting arranged by the employer, Talley's first cancelled the meeting and then declined to make alternative arrangements which would have allowed Mr Browne to be legally represented at a rearranged meeting.
As to the arguable case that the Authority found for Mr Burtton, it concluded nevertheless that this was not a strong case. It conceded that there may be what it described as:
… procedural infelicities in the way in which Talley's dealt with this matter … the substance of its decision in recognising that the evidence before the Authority is limited to sworn affidavit form, appears to be robust enough to justify the conclusion that it was available, to a fair and reasonable employer, on the balance of probabilities, to reach the conclusion that it did”.
However, the Authority concluded that the employer was entitled to believe what it said was the evidence that Mr Burtton had used pure methamphetamine on the voyage and had supplied it to female staff. The Authority further found that “the evidence was incontrovertible that Mr Burtton had lied about the extent of his relationship with Mr Browne.” It seemed inevitable to the Authority that, Mr Browne having been caught out in one lie, the employer “would prefer the evidence of other crew and the drug dog that Mr Burtton was involved with illicit drugs.”
The Authority concluded that each of Messrs Burtton and Browne had “an arguable case”. It did not say of what. That is not a pedantic criticism because the law on interim reinstatement clearly shows that grievants such as the plaintiffs in this case must not only have an arguable case of unjustified dismissal but also an arguable case for reinstatement in employment.
Turning to the balances of convenience, the Authority found that these lay with the employer in each case. In that of Mr Browne, the Authority said that this was because of “the absence of any proper explanation about the very significant allegations made against him by Talley's” including the absence of any explanation “about why the drug dog should be interested in Mr Browne's luggage or why Mr Browne's co-workers would say that he had been seen doing drugs on the ship if that was untrue.”
The Authority also found it so significant as to make it probably true that Mr Browne had used unlawful drugs, that he had what the Authority concluded was a nickname in Mr Burtton's electronic phone contact records at about the same time as Mr Burtton was dismissed by the same employer. The Authority also found it significant Mr Browne had admitted that he had formerly been a drug user and had ceased to be so but that this was “not consistent with the drug dog's view or with the opinion of the other members of the crew.” Quite how the Authority reached the conclusion that Mr Browne had not ceased to be a drug user in the view of the dog, is puzzling and not explained.
It is difficult to agree with several elements of the Authority's reasoning just set out. It would not have been incumbent on Mr Browne to explain to the employer why other crew members might have said that he was using and supplying unlawful drugs when he had been given no information about who had said so, when these events had taken place, and provided with other information essential to the ability to give an explanation. Nor does it follow ineluctably from Mr Burtton's use of a nickname in his own electronic records that Mr Browne was thereby guilty of involvement with...
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