LEE MORGAN v WHANGANUI COLLEGE BOARD of TRUSTEES NZEmpC WELLINGTON

• Jurisdiction: New Zealand
• Judge: G L Colgan
• Judgment Date: 02 July 2013
• Court: Employment Court
• Docket Number: WRC 3/13
• Date: 02 July 2013

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

BETWEEN

Lee Morgan

Plaintiff

and

Whanganui College Board of Trustees

Defendant

[2013] NZEmpC 117

WRC 3/13

IN THE EMPLOYMENT COURT WELLINGTON

Challenge to Employment Relations Authority determination not to consider evidence of conversations between the parties' legal advisers held prior to the plaintiff's dismissal for serious misconduct,–plaintiff was dismissed following his intervention in an altercation between pupils at the school at which he was a teacher — employer's legal representative referred in “off the record,” discussions to the possibility of the plaintiff resigning instead of being dismissed and having a complaint lodged against him with the Teachers Council — plaintiff alleged that was blackmail under s237 Crimes Act 1961 (threatens, expressly or by implication, to make any accusation against any person or to disclose something about any person)–whether there was a dispute when the statement was made so that privilege attached — whether the privilege should be disallowed under s57(3) Evidence Act 2006 (privilege for settlement negotiations or mediation when it does not apply)–whether there should be an exception to the privilege rule because of the defendant's alleged conduct.

Counsel:

David Burton and Fred Hills, Counsel for Plaintiff

Peter Churchman QC, Counsel for Defendant

JUDGMENT NO 2 OF CHIEF JUDGE G L Colgan

1 The question for decision in this challenge to a determination of the Employment Relations Authority 1 is whether the Authority correctly determined not to consider evidence of conversations between the parties' legal advisers before Mr Morgan's dismissal.

2 Although the plaintiff has elected to challenge the Authority's determination by hearing de novo, in which the Court will make its own decision on the case before it, because the Authority's determination involved the exercise of a discretion, it is important to have regard to its reasoning. As to the Court's ability in law to do so, see Davies v Dove Hawke's Bay Inc. 2

3 Mr Morgan was dismissed following his intervention in an altercation between pupils at the school at which he was a teacher, Whanganui College. In the course of the school's investigation about Mr Morgan's conduct, both parties had legal representation. Before the Whanganui College Board of Trustees (the Board) concluded its investigations and determined to dismiss Mr Morgan, the legal advisers had a conversation about potential outcomes of the Board's investigation. The Board says that this conversation was conducted, by agreement, in confidence in the sense that it was agreed that what was said could not be later given in evidence in related proceedings. Mr Morgan's lawyer relayed to him what had transpired during the conversation and he now wants the Authority to call for, and consider, evidence about what was discussed between the legal representatives.

4 The parties have now submitted to the Court an agreed statement of relevant facts which has enabled a face to face hearing to be dispensed with, but which includes some detail of two areas where there is disagreement between the witnesses about what was or was not said. Counsel have, however, invited the Court to determine the preliminary admissibility issue without resolving these disagreements. The question for determination now is whether conversations which included those disputed facts, are inadmissible. If they are inadmissible, irrespective of the truth of either account, then there will be no need for the Authority to resolve the disagreement. If the conversations are admissible and the Authority considers it should take them into account then it will probably have to do so.

5 I do not, however, go so far as Mr Churchman has submitted and agree that the plaintiff is inviting the Court to rule that the defendant's solicitor committed perjury. Not only has the solicitor not given evidence on oath, which is an essential ingredient of perjury, but all I have is an indication of what he will say if he gives evidence in the Employment Relations Authority about his discussions with the plaintiff's legal adviser. Simply because witnesses disagree about their recollections of events does not mean that the witness whose evidence is not accepted has committed perjury. Indeed, that is very rarely so, including in this jurisdiction.

6 Rather, the plaintiff's submissions emphasise the nature of the evidence that the plaintiff's lawyer will give (and inferentially of any cross-examination of the Board's lawyer) about the matters which have been identified in the agreed statement of facts as being in issue between those two witnesses, and for the purpose of persuading the Court that such evidence should be admissible.

7 In these circumstances, I propose to confine my consideration of the disputed facts to those set out in the agreed memorandum for the purpose of determining whether evidence of those conversations should be admitted in the Authority and, if so, whether the circumstances constitute an exception to the privilege that might otherwise apply to them.

8 The following account of relevant events is taken from the parties' statement of agreed facts.

9 On 29 March 2012 Mr Morgan restrained a student physically in the course of separating students engaged in what is described as a “bullying incident”. Mr Morgan reported the incident to the school's management and was requested to provide a report about the incident which he did on the following morning, 30 March 2012.

10 By 5 April 2012, when Mr Morgan met with senior management of the school, he had what is described as a “legal representative” (identified only as a Mr Robinson). Whether Mr Robinson is a practising lawyer, an employment law advocate, or a representative with another status, is not clear but this probably does not matter for the purpose of the present admissibility question. His role is described as a legal representative.

11 There was a meeting on 5 April 2012 at which the incident was discussed and there is no suggestion that what passed between the parties at that meeting is inadmissible in the proceeding. The meeting was adjourned to enable the school to seek legal advice.

12 Mr John Unsworth, a Whanganui solicitor, was instructed for the school and on 11 April 2012 Messrs Unsworth and Robinson had a telephone discussion. The agreed statement says: 3

… Mr Unsworth requested the conversation be “without prejudice”. Mr Robinson agreed. For the purposes of this current proceeding Mr Morgan and the Defendant agree that Mr Unsworth said the following to Mr Robinson:

a. He had been instructed by the school to telephone Mr Robinson regarding Mr Morgan, to have a without prejudice conversation. Mr Robinson agreed to proceed on a without prejudice basis.

b. He was aware that a meeting had occurred between the School, Mr Morgan and Mr Robinson as his legal representative.

13 I do not propose to set out all the conflicting accounts of the telephone conversation between Messrs Unsworth and Robinson. The following is Mr Robinson's account which the plaintiff wishes the Authority to consider but which the Board opposes (and with which Mr Unsworth disagrees).

14 The plaintiff's evidence from Mr Robinson will be that Mr Unsworth told Mr Robinson that the school's headmaster had talked with the Chair of the Board and that they had concluded that Mr Morgan's actions amounted to serious misconduct that would justify dismissal. Mr Robinson's evidence will be that Mr Unsworth inquired whether Mr Morgan wished to end his teaching career as a person dismissed for serious misconduct or whether he would prefer to tender his resignation. Mr Robinson will say that when he asked whether compensation would be available for Mr Morgan, Mr Unsworth's response was that there would be no severance pay because people who are dismissed for serious misconduct cannot expect anything other than their legal entitlements.

15 The statement of agreed relevant facts continues that after this telephone conversation there was email correspondence between Messrs Unsworth and Robinson about issues raised in the telephone conversation. This email correspondence was also stated to be on a without prejudice basis.

16 As a result of that meeting and the subsequent email correspondence, Mr Unsworth advised Mr Robinson that the school's disciplinary process would need to continue during the following week so that the matter could be resolved before the next school term started.

17 That disciplinary process recommenced with a meeting on 18 April 2012, attended by the parties and their legal representatives. There is no suggestion that the contents of this meeting were a continuation of, or on the same basis as, the previous communications by telephone and email between Messrs Unsworth and Robinson. That meeting, too, was adjourned to enable Mr Unsworth to advise his client, the school.

18 The agreed statement of facts then relates a further conversation between Messrs Unsworth and Robinson before which “Mr Unsworth told Mr Robinson he would like to have a second without prejudice discussion with him and Mr Robinson accepted the without prejudice basis of that discussion”. Again, the following is the controversial evidence intended to be called by the plaintiff but with which Mr Unsworth disagrees and the Board says the Authority should not consider.

19 The plaintiff wishes to call evidence that Mr Unsworth told Mr Robinson that if Mr Morgan resigned, his resignation would be accepted and the matter would not need to be reported to the Teachers' Council because the inquiry could be closed without making any formal decisions. The plaintiff seeks to adduce Mr Robinson's evidence that Mr Unsworth told him that an immediate decision by Mr Morgan was required, I infer, as to whether the plaintiff was to resign.

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