Graham Mckean v Ports of Auckland Ltd
 NZEmpC 128
IN THE EMPLOYMENT COURT AUCKLAND
In The Matter Of proceedings removed from the Employment Relations Authority
And In The Matter Of an application for interim reinstatement
Simon Mitchell, counsel for plaintiff
Richard McIlraith and Kylie Dunn, counsel for defendant
Application for interim reinstatement pending determination of claim for unjustified dismissal — applicant was a member of the union and authored an article about other company employees — company received 11 complaints that article was offensive — applicant contended that article was written as a member of the union and not in his personal capacity — whether dismissal was unjustified as defined by s103A Employment Relations Act 2000 (“ERA”) (test of justification) — whether interim reinstatement appropriate under s125 ERA (remedy of reinstatement) — application of amended s103A and s125.
The issue was: whether the dismissal was unjustified as defined by s103A Employment Relations Act 2000 (“ERA”) (test of justification — what a fair and reasonable employer could have done); and whether interim reinstatement was appropriate under s125 ERA (remedy of reinstatement).
Held: In determining an application for interim reinstatement, the court had regard to: whether the plaintiff had an arguable case that he was dismissed unjustifiably as defined by s103A ERA; whether the plaintiff had an arguable case for reinstatement under s125 ERA if he was found to have been dismissed unjustifiably; where the balance of convenience lay between the parties in the period until the court's judgment was given on those issues; and the overall justice of the case. (Cliff v Air New Zealand).
Clause 4.2.7 of the collective agreement set out a number of examples of conduct that might constitute serious misconduct warranting instant dismissal. These included “behaving in an offensive manner”. Serious misconduct would usually be “conduct that deeply impaired or was destructive of that basic confidence or trust that was an essential of the employment relationship.”
In the present case, there was no dispute that M was the author of the column in question. The magazine had a relatively wide audience and was available in the messroom and was found there by non-union employees. The article had objectionable terms and contained sexually deviant innuendo, racist and sexist slurs, and appeared to be directed at identifiable past and current POAL managers and employees (including those of a particular race and sex).
The position was not altered by M's claim that he wrote the article as a member of the union. It was strongly arguable that the key issue was whether M's actions constituted a breach of the duties he personally owed to POAL as an employee. Although the union said that it assumed responsibility, it did not alter the position. Taken to its logical conclusion that would mean that an employee could effectively clothe themselves with immunity from disciplinary action no matter how offensive their conduct by asserting that they were acting as a union employee at the time.
The right of union delegates to advocate for and on behalf of their members was to be jealously guarded. However, no bright line could be drawn. Every case had to be considered in its own context and having regard to its individual circumstances. Central to any assessment was likely to be the extent to which there was a connection between the conduct complained of and the employment relationship).
It was strongly arguable based on the evidence that M's admitted actions detrimentally impacted on the relationship he had as an employee with his employer, given the nature and tenor of the allegations he levelled against POAL and its employees. The column caused significant offence and upset to a number of people, particularly those referred to in highly critical terms within it. The breadth of distribution of the magazine in which the column appeared was significant.
There were strong indicators that the views expressed in the column were M's personal views and that he was writing in an individual rather than in a union capacity. The magazine also contained a disclaimer that suggested that views expressed were those of the writer and not of the union.
It was apparent that Parliament had intended to widen the circumstances in which and employer could justify dismissal under s103A as amended. This was reflected in the substitution of the word “could” for “would”. This was a statutory acknowledgement that there was a likely to be a range of responses open to a fair and reasonable employer in any particular case.
It was strongly arguable that the conduct in question did constitute offensive behaviour prohibited by the collective agreement and justifying instant dismissal, when viewed objectively, even having regard to the context of the stevedoring environment in which M worked and the relatively low threshold that applied at this stage of proceedings.
Reinstatement under s125 ERA was no longer the primary remedy to be provided where it was determined that an employee had a personal grievance. The section as amended provided for reinstatement as a remedy where it was held to be both “practicable and reasonable” to do so. In the present case, it was strongly arguable that the tenor of M's comments, the scope of their publication, and the apparent impact of the comments rendered reinstatement unlikely, even if he was ultimately found to have been unjustifiably dismissed. This was reinforced by the extent to which M had contributed to the situation himself. Section 124 ERA (remedy reduced if contributing behaviour by employee) required the court to consider the extent to which the actions of the employee contributed towards the situation that gave rise to the personal grievance. The degree of fault that appeared to be attributable to M suggested that when balanced against other relevant factors reinstatement was unlikely to be an appropriate remedy.
There was little strength in the arguments advanced on M's behalf in relation to both justification and reinstatement. Compensation (if M was found to have been unjustifiably dismissed) would be available to compensate for any loss suffered. Further, there was strength to POAL's concerns about the likely negative effect on others (including those who appeared to have been the subject of M's criticisms) if he were to be reinstated on an interim basis. The balance of convenience therefore, did not favour interim reinstatement. M was the author of the situation he faced. His contributory conduct and degree of fault weighed against the application. The overall justice followed the balance of convenience.
Application for interim reinstatement declined.
Mr McKean was summarily dismissed from his employment with Ports of Auckland Limited (POAL) on 20 September 2011. This followed concerns raised by his employer about a column he had written in a publication. He applies for interim reinstatement pending determination of his claim of unjustified dismissal. That application is opposed by POAL.
Mr McKean's grievance and application for interim reinstatement were removed from the Employment Relations Authority to this Court. 1 Removal was essentially on the basis that the case involved consideration of two recent amendments to the Employment Relations Act 2000 (the Act), relating to the test for justification for dismissal under s 103A and the test for reinstatement as a remedyunder s 125. Both are relevant to the substantive claim and, more immediately, to the issue of whether interim reinstatement ought to be granted.
The scope of the new provisions is yet to be determined (and is to be the subject of consideration by a full Court of the Employment Court shortly). However, it is clear that the amendments reflect a Parliamentary intention 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. 2
In determining an application for interim reinstatement the Court must have regard to: 3
•whether the plaintiff has an arguable case that he was dismissed unjustifiably as defined by s 103A of the Act;
•whether the plaintiff has an arguable case for reinstatement in employment 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
•the overall justice of the case.
Mr McKean was employed by POAL as a stevedore. At the time of his dismissal he had been working for the company for nearly 18 years. He was also an executive member of the Auckland Branch of the Maritime Union of New Zealand (the union) known as “Local 13”, which represents stevedores and other employees at POAL.
Local 13 publishes a magazine called Port News on a quarterly basis. Mr McKean contributed a column to the magazine, entitled “Coach's Comments”. Mr McKean was also one of the union representatives involved in the current bargaining for a new collective agreement.
Mr McKean was dismissed for serious misconduct on 20 September 2011 following publication of a column he wrote for the September 2011 edition of the Port News. The Chief Executive Officer of POAL, Mr Gibson, received 11 written complaints from staff members about the column. Following a...
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