C v Air Nelson Ltd

• Jurisdiction: New Zealand
• Judge: M E Perkins
• Judgment Date: 29 March 2011
• Court: Employment Court
• Docket Number: ARC 7/10
• Date: 29 March 2011

IN THE MATTER OF a challenge to a determination of the Employment Relations Authority

BETWEEN

C

Plaintiff

and

Air Nelson Limited

Defendant

[2011] NZEmpC 27

ARC 7/10

IN THE EMPLOYMENT COURT AUCKLAND

Application for review of Employment Relations Authority decision — plaintiff employed by as airline pilot but dismissed as a result of inquiry into behaviour while on an unplanned overnight stopover- 19 year old flight attendant made a complaint to police about plaintiff's behaviour — the defendant conducted a separate inquiry into allegations of serious misconduct — plaintiff raised a personal grievance following dismissal and made unsuccessful application for interim reinstatement — plaintiff sought remedies of reinstatement, reimbursement of lost wages, compensation for humiliation, indignity and injury to feelings, compensation for loss of benefits and costs — whether the defendant was justified in dismissing the plaintiff.

Counsel:

John Haigh QC and Richard McCabe, counsel for plaintiff

Christopher Toogood QC and Kevin Thompson, counsel for defendant

JUDGMENT OF JUDGE M E Perkins

Introduction

1 The plaintiff (C) was dismissed from his employment with the defendant Air Nelson Limited (ANL) on 25 June 2009. At the time, C was an airline pilot captain employed by the defendant airline. The dismissal followed an inquiry made by ANL into C's behaviour while on an unplanned overnight stopover in Napier on 20 May 2008. During the course of the inquiry, C was originally stood down from flying duties and later suspended. The inquiry and the dismissal were carried out by the then General Manager of ANL, Mr John Hambleton.

2 Following the dismissal, C raised a personal grievance. This was unresolved between the parties. In August 2009, C made an unsuccessful application to the Employment Relations Authority for interim reinstatement.

3 As a result of the personal grievance being unresolved C, made an application to the Authority claiming that his dismissal was unjustifiable and that he had been unjustifiably disadvantaged by his suspension from flying duties during the course of ANL's investigation.

4 The grievance in respect of the suspension was not pursued at the investigation by the Authority as a separate grievance. The plaintiff sought the primary remedy of reinstatement for the dismissal. The Authority held that there was no sustainable personal grievance arising from the dismissal. For the sake of clarity it made a similar finding in respect of the grievance lodged for the suspension contained in the statement of problem but not actually pursued at the investigation.

5 The determination was issued on 13 January 2010. 1 On 3 February 2010, C filed a challenge to the determination seeking a hearing de novo. He elected to challenge the whole of the determination. The claim before the Court now pursues a grievance only in respect of the dismissal and seeks remedies of reinstatement, reimbursement of lost wages, compensation for humiliation, indignity and injury to feelings, compensation for loss of benefits and costs.

Uncontested factual background

6 The plaintiff was captain on the defendant's aircraft due to fly out of Napier on the evening of 20 May 2008. The crew of the aircraft consisted of C, a male first officer (FO) and a female flight attendant (FA), who was aged 19 years at the time. While the aircraft was on the runway, the airport became enshrouded in mist and the flight could not commence. The aircraft then taxied back to the terminal and repositioned for the night. The passengers disembarked and the crew made arrangements for an overnight stay at a local hotel. They had consumed an amount of food prior to the aborted departure.

7 On their taxi journey to the hotel, C and FO asked the driver to stop at a local supermarket. The three crew members went into the supermarket and purchased four bottles of wine and six 330 millilitre bottles of beer. C and FO shared the cost

of the purchase of the alcohol equally. FA did not have any money with her and was not called upon to contribute. Prior to entering the supermarket from the taxi the pilots left their hats in the vehicle and covered their uniforms with their overcoats. FA took off her identification tag and her name badge. They were careful to ensure that their uniforms could not be identified by anyone in the supermarket

8 Once the wine and beer were purchased, the trio proceeded to the hotel and checked in. As they were without overnight clothes, C arranged for the hotel to deliver robes to the three rooms they occupied. It was agreed that the three, once they had changed into the robes, would then meet in C's room for a drink and nibbles. The three rooms were adjacent to each other. There was a connecting door between the room occupied by C and the room occupied by FO. The three met in C's room wearing the robes over their underwear. What transpired that evening and in the early hours of the next morning became the subject of a police inquiry into complaints made by FA and a separate inquiry by ANL into allegations of serious misconduct.

The company inquiry

9 There is substantial evidence by way of a document trail establishing the steps taken by the employer to investigate the matter. The initial attempts by ANL to interview C and FO were delayed by the fact that a police inquiry was being undertaken into the complaints to the police. Once the pilots' union deflected the company's inquiries by invoking the right to silence, matters settled down. The periodic correspondence from the Human Resources Manager of ANL attempting to call meetings for interviews, while premature, indicated the initial emphasis of the company on allegations of inappropriate purchase and consumption of alcohol. As matters progressed, ANL raised further heads of issues as subjects of inquiry and they were notified to the pilots. FA, who was also subject to investigation for her behaviour on the night in question, was notified of the issues involving her.

10 Once the police inquiry was completed, and it was decided that no charges would be laid against either C or FO, statements were prepared by them to be provided to ANL. FA had also provided statements but it is unclear exactly how ANL's inquiry into FA's conduct proceeded. However, the inquiry into C's and FO's conduct involved the presentation of their statements at a meeting convened for that purpose. What Mr Hambleton, therefore, had before him in conducting the inquiry were the statements from C, FO and FA. Those statements contained the evidence from the participants upon which Mr Hambleton needed to make his decision as to whether there had been serious misconduct and, if so, what disciplinary action would be taken.

11 Obviously, there had been considerable delay between the occurrence of the hotel room incidents and the statements becoming available to Mr Hambleton. This delay was not unreasonable. It was clear that C (and, for that matter, FO), acting on advice from his union and legal advisers, during the early and middle stages of this process, would have been extremely careful in what he said. He was the subject of police inquiry and could have faced a very serious charge of sexual violation. Once that was eventually considered by the police to be without foundation, he became subject to discipline by his employer. His career as a professional pilot was at stake. It is a matter of record that the relationship between the airline and the pilots' union involved in this dispute is virtually always conducted on an aggressively adversarial basis. The Authority Member referred to that in his determination. The documentary and other evidence produced shows that this dispute was no different from the norm. As Mr Haigh, counsel for C, mentioned in his submissions, the official reports of this Court are littered with outcomes of litigation between pilots or their professional association/union, and the employer airlines. That history, in turn, has some significance in my findings on one aspect of ANL's criticism of C throughout the process, upon which I shall elaborate later in this decision.

12 Counsel agreed at the outset of the hearing that the folders of documents, which include the statements provided to ANL by C, FO and FA as part of the disciplinary process, are to be regarded as evidence in this matter. That is necessary to enable the Court to judge the actions of the employer during the disciplinary process. C and FO made one statement each. Both were disclosed to ANL during its inquiry. FA made two statements on the same day to the airline. That is explained by the fact that her father was present when the first statement was being taken and she was embarrassed to reveal all of the circumstances in front of him. The second statement elaborates on the matters contained in the first statement. So far as C is concerned, he and FO, as part of the police inquiry arising out of the circumstances, also made statements to the police. I was informed by counsel that these statements were not inconsistent with the statements they made to ANL.

13 In respect of the statements to the police, FA later took a curious stand during the employment inquiry by Mr Hambleton into the conduct of C and FO. She initially refused to agree to her own statement being provided to the company until after the company had decided not to discipline her. She then refused to agree to the statements C and FO had made to the police being provided to the company. No reason was given for that at any stage during the course of evidence. FA's own evidence under cross-examination on this issue was completely unconvincing. Of course Mr Hambleton was aware of her attitude at the time of his own investigation and would have needed to have taken cognisance of it in making his decisions. It is inexplicable that the police should have regarded FA as having a right to veto the...