Jane Drader v Chief Executive of The Ministry of Social Development

• Jurisdiction: New Zealand
• Judge: B S Travis
• Judgment Date: 09 October 2012
• Court: Employment Court
• Docket Number: ARC 35/12
• Date: 09 October 2012

In The Matter Of a challenge to a determination of the Employment Relations Authority

BETWEEN

Jane Drader

Plaintiff

and

Chief Executive Of The Ministry Of Social Development

Defendant

[2012] NZEmpC 179

Judges:

Judge Travis

ARC 35/12

IN THE EMPLOYMENT COURT AUCKLAND

Challenge to a determination of the Employment Relations Authority which found the plaintiff's dismissal was justified because her actions amounted to serious misconduct — plaintiff employed as a Service Centre Manager — had verbal altercation with client in Work and Income office, and then had a physical altercation with that client later that night — plaintiff accessed confidential system in breach of Code of Conduct to obtain client's details and threatened her — plaintiff sought reinstatement and reimbursement — whether D's dismissal was justified under s103A Employment Relations Act 2000 (test of justification) and if not whether plaintiff was entitled to remedies.

Counsel:

Bryce Quarrie, counsel for plaintiff

Samantha Turner and Simon Clark, counsel for defendant

JUDGMENT OF JUDGE B S Travis

B S Travis

1 The plaintiff has challenged a determination of the Employment Relations Authority 1 which found that her dismissal on 29 March 2011 was justifiable because her actions amounted to serious misconduct. She sought a full hearing of the entire matter, reinstatement, reimbursement and compensation. The issues which led to her dismissal arose following a rugby match on a Friday evening and her actions when she returned to work the following Monday.

Factual findings

2 The plaintiff began to work for the Ministry of Social Development (the Ministry) in 1994 in a variety of roles and, following promotion, was appointed Service Centre Manager in Kerikeri. She had nine staff working under her management. She was a competent and efficient manager and her supervisors spoke

well of her. There is no evidence of any blemish to her work record until the events in 2011 which led to her dismissal

3 On Thursday 3 February 2011 the plaintiff was acting as the relief receptionist when a client of the Ministry came into the Kerikeri Work and Income office accompanied by a woman (who counsel agreed would be referred to as client A). The other client had an appointment, but client A did not. Client A made enquiries concerning a child care subsidy but was told by the plaintiff that she would either need to make an appointment or could sit and wait for a case manager. The plaintiff said it would be a long wait as the office was busy and other clients had appointments and had not yet been seen. The plaintiff provided client A with a form to complete and she was not aware when client A left the office.

4 Client A returned on Friday, 4 February and the plaintiff was again acting in the role of receptionist for what was anticipated would be a busy day. Her intention was to free up case managers whose time was fully booked for the day. Client A asked for an appointment that day. The plaintiff informed her that they had no available appointments but if she would like to sit and wait, for a considerable time, a client manager might become available. The plaintiff made enquiries in response to client A's questions and arranged for an email to be sent to the childcare co-ordinator to have that person notify the particular childcare centre that the matter of payment was being looked into. The plaintiff did not have the necessary documents to assist client A any further and was under considerable pressure to deal with other clients who were waiting. Client A appeared to be unhappy with the plaintiff's efforts on her behalf. The plaintiff did not see client A leave the centre.

5 The plaintiff had been hoping to leave the office a little early that evening because she and her husband had organised with two friends to stay at a motel as they had tickets to a rugby game in Kerikeri that evening. The plaintiff was unable to get away from the office until 5.15 pm. When she arrived at the motel, she met her friend, Tania Rakena, but their husbands had already gone to the rugby match which had started at about 5 pm. The plaintiff and Mrs Rakena relaxed over a few beers. The plaintiff's unchallenged evidence was that she had three “stubbies”. After the rugby match, the plaintiff and Mrs Rakena were joined by their husbands and they all set off at approximately 7.40 pm to a premises called the “Rock Salt Bar” to enjoy the rest of the evening. They sat outside, along with other friends and a large crowd of rugby goers.

6 At approximately 10.30 pm the plaintiff asked a male standing beside her for a light to her cigarette. He replied in the affirmative and provided his cigarette to light the plaintiff's. According to the plaintiff, a female, who the plaintiff could not see at the time, came around behind the male and said to the plaintiff, “That's my fucking man.” The plaintiff recognised the person as client A. The following account is taken from a transcript of a recording of a disciplinary meeting with the plaintiff which took place on 14 February 2011, to which I will refer shortly.

… I remember saying “piss off” whether I said “fucks sakes” or “fuck ya piss off” and then I don't know, I just remember seeing her face and her like this and then all of a sudden I don't know what happened, but I could just feel the blood, warm stuff coming down my face and I think I went and swung at this person and then um, and that was it.

I think they had gone, Tony [Mr Drader] had just come back from the bar, he had, he looked at me and said “what the F has happened”. He grabbed my arm because I had just started going crazy and saying “what the bloody…” but I could only see, I don't know the blood that was coming out of my head, it wasn't dripping, it was just pouring out of my head, like it was everywhere

… I think the girl and her friends and whoever they were about 10 metres away from us and then Tony still wouldn't let me go as hard out as I was trying to get away from him just saying let me go I want to go and find who done this and from then on he got me and dragged me, walking… pulled me across the street … I was still bloody well swearing and saying “let me go”.

7 There was no issue that client A had struck the plaintiff with a bottle, cutting her above the right eye. Mrs Rakena went over to client A. According to the plaintiff's account she said “What the fuck did you do that to my mate for”, another woman punched Mrs Rakena, there was a scuffle and Mrs Rakena was also hit on the head with a bottle by client A.

8 As Mr and Mrs Drader were returning to the motel, a police car pulled up beside them and a female constable asked if Mrs Drader was alright. She said that she was and, when asked if she knew who assaulted her, she said she knew who it was and that she was a client. The police officer asked if Mrs Drader was going to lay a complaint and Mrs Drader said yes. After ascertaining that Mr and Mrs Drader were alright and were returning to their motel, the police officer left.

9 The plaintiff's account was that the following day, Saturday, the wound was covered with some suture plasters and she knew she should have gone to the doctor but she did not. She said that she was still a little bit “blown away”. Mr and Mrs Drader went home. On the Monday she had to go to work. As her face was swollen, people started asking her about her face and what had happened and people were coming to have a look or to laugh. She stated to her manager at the 14 February disciplinary meeting:

I just went to my desk, pulled up her name, looked into UCVII for her phone number and I went into the little interview room and rung her and threatened her …

I said “hi, is this [client A]?” And she said “yep”. I said “you've let the dogs out now, you'd better watch out”, and I hung up.

10 The reference to UCVII is to a programme of the Ministry which contains confidential information relating to clients and for which authorised access is required. It is common ground that the plaintiff on this occasion did not have any authority to access client A's confidential client records and to take from them client A's unlisted phone number.

11 The plaintiff was asked what she meant by “You've let the dogs out” and she replied:

I don't know, I suppose, in that frame of mind, I was thinking that people will know that I've been hit or that you've done this to me and they'll come after you, just say you [inaudible] in other words, you bitch you did this to me, you're gonna [inaudible] and what.

12 The plaintiff was asked by her manager “So … [in] making the threat and, that sort of thing I mean what, what was your intention?” and she replied “Don't know, I don't know, I honestly don't know. I know this stuff, I know this”.

13 In the course of the disciplinary meeting she was asked why she had not contacted two of her managers who were both in her region on the Monday. She was also asked why she did not ring the manager who was her mentor over the weekend, or on the Monday. She replied:

It was the furthest thing from my mind, when I got hit and I have never ever been bottled or threatened or anything for 15 years I've been working with MSD. I've dealt with mongrels that are bloody harder than bricks and, I don't know, I just couldn't understand how someone could just walk up to you and just because, just bottle you on the head, oh … I, all weekend I was thinking that's my job, I'll probably lose it, public servants are not allowed to be out scrapping and doing all that sort of stuff, I … there was a whole lot of stuff going on in my head, just a whole lot of stuff… what the hell you know and I didn't I just don't know and then on the Monday, what I should have done was just stay home [inaudible] habit, I don't know but I got up and went to work and, seeing people.

14 Returning to the narrative, at about 11 am on Thursday 10 February 2011, Mrs...