Jesse Waiariki Temanava Butler v Martin Shepherd Hc Ak
| Jurisdiction | New Zealand |
| Judge | Bell |
| Judgment Date | 18 August 2011 |
| Court | High Court |
| Docket Number | CIV 2011-404-923 |
| Date | 18 August 2011 |
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CIV 2011-404-923
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
Application for strike out plaintiff's claim — plaintiff (“P”) was part-time Maori tuakana mentor at Auckland University (“the University”) — three year fixed term employment contract — employment terminated after five months — defendants were staff or officers of the University — P had been offered opportunity to attend a disciplinary meeting but sought to pursue matters through the Employment Relations Authority (“ERA”) instead — decision made to dismiss P — was still open for P to pursue claim through ERA but amended statement of problem needed as well as other steps including mediation — whether the High Court had jurisdiction to hear P's claims — whether P had any tenable causes of action.
Plaintiff in person
D J Neutze for first to sixth defendants
R Kirkness for seventh defendant
JUDGMENT OF ASSOCIATE JUDGE Bell
Mr Butler worked in the Faculty of Engineering at the Auckland University as a Maori tuakana mentor on a part time basis under a three year fixed term contract. His employment began on 7 April 2010 but ended on 23 August 2010.
This proceeding arises out of the events leading to the end of his employment, and out of related proceedings in the Employment Relations Authority.
The first six defendants are staff or officers of the University of Auckland. Martin Shepherd, the first defendant, is the director undergraduates at the Engineering Faculty. Professor Michael Davies, the second defendant is the Dean of Engineering. Avette Kelly, the third defendant is a human resources manager in the Medical and Health Sciences Faculty. Jim Peters, the fourth defendant, is the Pro Vice Chancellor Maori. Kath Clarke, the fifth defendant, is the human resources director. Professor Stuart McCutcheon, the sixth defendant is the Vice Chancellor. The Attorney-General, the seventh defendant, is sued in respect of the Employment Relations Authority.
Mr Butler sues the first to sixth defendants for damages of $1,800,000 for losses said to arise from loss of his employment. He sues the Crown for unspecified damages for alleged cultural offence in relation to proceedings in the Employment Relations Authority.
The university defendants have applied to strike out Mr Butler's statement of claim and for summary judgment. The Attorney-General has applied to strike out the statement of claim.
Professor McCutcheon's affidavit gives a background narrative. The University employed Mr Butler as a Maori tuakana mentor in the Engineering Faculty. That role is to provide support, guidance and mentorship to Maori students. Mr Butler reported to his manager, Mr Shepherd, and through him to the Dean of the Engineering and ultimately to the Vice Chancellor.
On 11 June 2010, another member of the tuakana team made a complaint against Mr Butler concerning his allegedly aggressive and abusive language and attitude.
On 21 June 2010, Mr Shepherd met with Mr Butler for an objective setting meeting. Mr Shepherd noted that Mr Butler appeared frustrated a number of times and became confrontational.
On 24 June 2010, there was a tuakana team meeting which Mr Shepherd attended as an observer. He became concerned at critical comments Mr Butler made about other team members. Mr Shepherd met with Mr Butler after the meeting to discuss the matter further. He found Mr Butler's attitude dismissive and confrontational. Mr Butler accused Mr Shepherd of being “too emotionally involved” with team members to hold balanced views.
On 25 June 2010, Mr Shepherd requested Mr Butler to meet with him to discuss the issues raised the day before. Mr Shepherd's e-mail said that he thought it was important to have a person with an objective perspective present and he invited Carl Perry, the faculty human resources manager, to attend the meeting. Mr Butler replied with an e-mail on 28 June saying that he had nothing further to add unless Mr Shepherd was making a human resources complaint against him.
Mr Shepherd replied on 29 June 2010 that the meeting was not the first stage of a human resources complaint. Mr Perry was invited to assist in having a positive discussion. Again he requested Mr Butler to attend a further meeting. In a reply on 1 July 2010, Mr Butler declined to attend.
On 14 July 2010, Mr Shepherd sent an e-mail requiring Mr Butler to attend a meeting to clarify his expectations for communication within the tuakana team, with students, and between Mr Butler and himself. He also stated that the meeting was not part of a formal disciplinary process, and he hoped to avoid such a process.
On 17 July 2010, Mr Butler sent an e-mail raising a formal complaint against both Mr Shepherd and Mr Perry. As part of his complaint he refused to return to work until his complaint had been resolved. He gave the Engineering Faculty seven working days to address the matters in his complaint before he proceeded to the “next level”.
By an e-mail of 21 July 2010, Mr Butler sent a further document proposing terms of settlement.
On the same day, Professor Davies acknowledged Mr Butler's complaint and proposed settlement. Writing to Mr Butler he said he had asked Avette Kelly, human resources manager for the Faculty of Medical and Health Sciences, to carry out an investigation into the events surrounding Mr Butler's complaint. He also invited Mr Butler to attend mediation by the Department of Labour in parallel to an investigation. He advised Mr Butler about the Employees Assistance programme which he could access for support.
On 23 July 2010, Mr Butler sent an e-mail to Professor Davies. This e-mail was not put in evidence, but Professor McCutcheon says that Mr Butler set an ultimatum for resolving the dispute, or he would take his complaint to the Vice Chancellor and also to New Zealand Maori media.
On 23 July 2010, Mr Butler wrote to Mr Peters advising him of the circumstances complained of, and requesting his intervention.
By letter dated 30 July 2010, Ms Kelly advised Mr Butler that she had been asked to investigate his complaint. She formally instructed him to stand down from the workplace on full pay until his employment relations problem had been solved.
On 1 August 2010 Mr Butler replied to Ms Kelly. He requested mediation, saying that the Labour Department had recorded him as the applicant. He referred to her letter as a “covert trespass notice”. Amongst other things he said:
Expect your performance, your process and your report to be ‘strongly and robustly’ challenged and examined for impartiality and transparency.
On 2 August 2010 Ms Kelly replied explaining her role, the fact that she had been instructed to carry out the investigation and the reasons why it was proposed that he stand down from work. She proposed a time to meet Mr Butler, also suggesting that Mr Perry attend. She also explained that she had requested mediation on behalf of Professor Davies, and that the University was the applicant, not Mr Butler.
Mr Butler replied by an e-mail of 10 August 2010. He queried steps that had been taken, the proposal that there be a Maori mediator when he had not proposed that, and that there was an internal investigation at the same time as a mediation. He claimed that “covert stuff' has been going on, and that the process had not been transparent. He said he was now taking a complaint to the Employment Relations Authority.
In the meantime, Ms Kelly conducted an investigation and wrote a report dated 11 August 2010. Mr Butler declined to be interviewed by her. She reported that she had found no evidence to substantiate any of the allegations made by Mr Butler against Mr Shepherd and Mr Perry and she was concerned about the way Mr Butler had handled the matter.
By letter dated 13 August 2010, Cassandra Ellis, a human resources manager with the Business School of the Auckland University, invited Mr Butler to attend a formal disciplinary meeting to discuss his possible serious misconduct. The letter advised that no decisions had been made but that disciplinary action up to and including dismissal could be taken.
On 12 August 2010, Mr Butler lodged a statement of problem with the Employment Relations Authority. The University received this on 13 August 2010. In his statement of problem Mr Butler said amongst other things:
My position of tuakana mentor has been made untenable by the conduct of executive ‘bosses’.
He said that the bosses had used “unprincipled and covert processes”, and “I cannot remain in the position of tuakana mentor because of their racism, and so seek to be released and full contract paid out”.
On 16 August 2010, Mr Butler wrote to Ms Ellis confirming that he had lodged his statement of problem with the Employment Relations Authority and saying that because this employment issue was going through the Authority process he thought it was inappropriate to try to pre-empt any form of disciplinary process. He had nothing to say to Cassandra Ellis or Professor Davies until the employment matter had been heard and addressed by the Employment Relations Authority.
In her reply of 16 August 2010, Ms Ellis said that the matter he had raised with the Employment Relations Authority was a separate issue. She said:
The reason you have been invited to this disciplinary meeting is to discuss the behaviour and manner in which you have conducted yourself recently, as indicated in my letter of...
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