HENRY NEE NEE v C3 Ltd NZEmpC AUCKLAND
| Jurisdiction | New Zealand |
| Judge | M E Perkins |
| Judgment Date | 20 November 2013 |
| Court | Employment Court |
| Docket Number | ARC 93/12 |
| Date | 20 November 2013 |
IN THE MATTER OF a challenge to a determination of the Employment Relations Authority
In The Matter of a challenge to a determination of the Employment Relations Authority
ARC 93/12
ARC 94/12
IN THE EMPLOYMENT COURT AUCKLAND
Challenge to Employment Relations Authority (“Authority”) determination that the plaintiffs were justifiably dismissed — plaintiffs were employed by defendant as stevedores at the Port of Auckland — plaintiffs were delegates of the Maritime Union of New Zealand and health and safety representatives at the worksite — defendant imposed liquor ban (as a result of a previous incident) prohibiting liquor to be brought onto or consumed on the premises — plaintiffs found to have been drinking in the locker room in breach of the ban — following disciplinary procedure during which plaintiffs denied drinking alcohol (contrary to the evidence), plaintiffs were dismissed from their employment — employees argued that those who were not health and safety representatives were not dismissed and the actions of the defendant were discriminatory and resulted in disparate treatment — whether dismissal was unjustified with regard to statutory test of justification in s103A Employment Relations Act 2000 (“ERA”) (test of justification).
Simon Mitchell, counsel for plaintiffs
Phillipa Muir and Rebecca Rendle, counsel for defendant
JUDGMENT OF JUDGE M E Perkins
The two plaintiffs were employed by the defendant (C3 Limited) as stevedores at the Port of Auckland. They were delegates of the Maritime Union of New Zealand and health and safety representatives at the worksite. As well as being senior employees they were regarded by the defendant as having leadership responsibilities.
As a result of a previous incident on the defendant's premises at the waterfront, it imposed a liquor ban. Under this ban no liquor was to be brought onto or consumed on the premises.
It came to the notice of the defendant that on the evening of 2 February 2012, a group of employees had been drinking alcohol in the locker room in breach of the ban. An initial investigation was carried out.
The defendant decided as a result of its inquiries that four of its employees and two employees of another stevedoring company had been drinking in the locker room. The plaintiffs were members of that group. Following a disciplinary procedure the plaintiffs were dismissed from their employment.
The plaintiffs raised personal grievances against their dismissal. Eventually these were subject to an investigation meeting in the Employment Relations Authority (the Authority). The Authority made a determination on 14 December 2012 that the plaintiffs were justifiably dismissed. 1
The plaintiffs filed challenges to the determination. The Court directed that they be heard together. The two matters then came before the Court for hearing. At the commencement of the second day of the hearing the plaintiff, Henry Nee Nee, indicated through counsel that he was withdrawing his challenge. Accordingly, an order was made dismissing Mr Nee Nee's challenge with reservation on the issue of costs. Timetabling was directed for the presentation of submissions on costs in the event that agreement could not be reached.
This judgment deals with the remaining challenge by Mr Nathan. Of necessity, reference will be made to matters also relating to Mr Nee Nee and his challenge. It also deals with the application now formally made by the defendant for an award of costs against Mr Nee Nee.
Mr Nathan claims that his dismissal was unjustified because:
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a) Other employees who were not health and safety representatives or union delegates were not dismissed for their involvement with drinking on the night in question;
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b) The actions of the defendant were discriminatory, due to the defendant taking into account Mr Nathan being a union delegate and health and safety representative as aggravating features in the decision to dismiss him;
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c) The actions of the defendant were disparate as to treatment between employees involved in the same incident;
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d) The actions of Mr Nathan did not amount to serious misconduct in all the circumstances and dismissal was therefore unreasonable.
As to remedies, Mr Nathan seeks:
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a) Reinstatement;
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b) Reimbursement of lost wages;
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c) Compensation for humiliation, loss of dignity and injury to his feelings.
The liquor ban imposed by the employer arose from an incident on 22 September 2011. There was a serious assault in the canteen resulting in injuries to an employee. Apparently this employee fell down a stairway leading from the canteen to the ground floor. He was badly injured. The ban came into force on the following day. The ban was well publicised around the workplace, and in addition Ronald Neil, the Auckland Manager of C3 Limited, sent a text message to all staff notifying them of the ban.
Both Mr Nathan and Mr Nee Nee were union delegates and health and safety representatives. As health and safety representatives they attended a health and safety meeting on 27 September 2011 where the liquor ban and its reasons for introduction were discussed. The minutes of that meeting record their attendance and that that discussion took place.
On 2 February 2012, Mr Nee Nee and Mr Nathan, at the conclusion of their shifts, went to the locker room. Mr Nee Nee had been there earlier in the day. He claimed that he noted on the earlier occasion that there was a box of beer in the fridge located in the mess room. He also claimed that there were some bottles of ginger beer in the fridge. During the day he noticed some of the other employees fishing on the wharf. He informed them of the beer located in the mess room. When he finished his shift he went to have a shower and when he came back he noticed that the other workers were there and had started to drink the beer in the locker room. He initially claimed to have consumed only ginger beer but later conceded drinking a bottle of beer. This concession came late in the disciplinary procedure, which followed.
Mr Nathan later went to the locker room following the conclusion of his shift. When he was in the locker room he was offered beer. He initially denied consuming alcohol but much later stated that he unwisely accepted the beer offered to him. He said that he drank one bottle of beer. He indicated that knowing of the liquor ban he informed the other workers of the risk of breaching the ban and encouraged them to leave the locker room. He claimed that they then all went downstairs. He went to a nearby supermarket and bought some more beer. They drank this on the footpath outside, which is off the employer's premises. It appears that the drinking session, which occurred partly upstairs on the defendant's premises in its locker room and partly in the public area outside the premises, must have continued for some time. Mr Nathan reiterated during his evidence what he had told the initial inquiry and subsequent disciplinary meetings, that not being in a fit state to drive home he had contacted his niece to come and collect him. Other employees present claimed Mr Nathan drove himself home. From the defendant's inquiries it appeared that in total 66 bottles of beer were consumed. It was accepted that one of the six present did not drink any alcohol.
The employer became aware of the drinking session and, therefore, the breach of its liquor ban, the following day. An inquiry was commenced. As part of the inquiry photographs were taken of the number of beer bottles that were left in rubbish bins outside the premises and where the canteen, mess room and locker room are located. There was uncontested evidence from the employer's gear store manager that on the morning of 3 February 2012 he noticed that the wheelie bins inside the smoko room and the 20 litre paint tin outside the building were full of empty beer bottles and beer boxes. He also gave evidence of some significance that after the ban was first imposed he had been asked to monitor the situation and report to the Auckland Manager if he found empty beer bottles or cans in the bins. He stated in evidence that before the ban was imposed there would regularly be beer bottles or cans in the rubbish bins and they would smell of beer. After the liquor ban he could not recall finding any empties in the internal rubbish bins. He stated that the external bins outside in the street would have the odd empty beer bottle in them from time to time. This evidence has some significance in meeting an assertion of Mr Nee Nee and Mr Nathan that following the liquor ban the company was inconsistent in monitoring the ban and that drinking had been allowed to take place on the premises. The company denied this.
Once it was ascertained that there had been a serious breach of the liquor ban involving the six employees, the company carried out interviews. There was some delay in the commencement of the inquiry because of work pressures and the Waitangi Day holiday weekend intervening.
The inquiry also involved separately interviewing each of the participants known to have been present. Mr Nee Nee denied drinking any beer and said he had only consumed ginger beer. During the course of the investigation he produced some bottles, including a ginger beer bottle he claimed to have retrieved from the bins, to corroborate his assertions.
Mr Nathan denied drinking beer on the premises but admitted drinking outside the premises as he was permitted to do. During the course of the disciplinary investigation, but not initially, he also indicated that he had gone to the supermarket to buy more beer and raised an assertion that he had only consumed ginger beer on the...
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