Leon Burgess Gaut v BP Oil New Zealand Ltd

JurisdictionNew Zealand
CourtEmployment Court
JudgeA D FORD,Judge
Judgment Date23 June 2011
Docket NumberCRC 23/10
Date23 June 2011

[2011] NZEmpC 71



Judge Ford

CRC 23/10

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

Leon Burgess Gaut
BP Oil New Zealand Limited

Tim Jackson, advocate for the plaintiff

Samantha Turner and Simon Clarke, counsel for the defendant

Challenge to Employment Relations Authority finding that plaintiff had been justifiably dismissed — plaintiff employed as customer services representative by defendant — misconduct in Code of Conduct included “using insulting or abusive language” — disciplinary action taken for two incidents involving plaintiff allegedly using offensive language — dismissal followed — whether the actions of defendant were those a fair and reasonable employer would have taken in all the circumstances.

At issue was whether the actions of BP were those a fair and reasonable employer would have taken in all the circumstances.

Held: It was accepted that obscene or abusive language could be capable of being regarded as serious misconduct justifying dismissal ( Waitemata District Heath Board v Timu). It was not disputed that if G had used the words complained of in the second incident, then BP would have had justification for dismissing G. However an investigation into misconduct had to be conducted in a full and fair manner; otherwise a finding of serious misconduct would not be enough. Additionally there was a specific contractual obligation assumed by BP in the COC to ensure procedural fairness in a dismissal.

The Interview Acknowledgement/Consent form that G was required to sign for the disciplinary interviews was unsatisfactory. A disciplinary investigation was personal to the employee and dependent upon all the circumstances of a particular case. A generic form on its own therefore did not provide the necessary personalisation needed to comply with s4(1A)(c) Employment Relations Act 2000 (“ERA”) (parties to employment relationship to deal with each other in good faith). The form gave no details of the improper or obscene language G was alleged to have used. The fact that G was not provided with a copy of the form prior to the meeting or even shown the form until well into the meeting was contrary to s4(1A) ERA and the requirements of natural justice. As a result G was unable to contact potential witnesses to events before the investigation meeting.

The form gave no indication whether the actions were regarded as “misconduct” or “serious misconduct”, as both boxes had been ticked. No indication was given as to the likely outcome if misconduct was established. Ticking every box on the form was inherently confusing in the circumstances and did not provide the necessary information for G to prepare a satisfactory response or put him on notice of the severity of the possible outcome of the investigation. If a clear indication had been given to G about the potential serious misconduct finding, with dismissal being a likely outcome, it was likely that G would have retained counsel to represent him at the disciplinary meeting.

Additionally, during the disciplinary process BP created a new form of serious misconduct, “verbal assault”. This went outside the specific wording of the COC. BP had also adopted a new mode of disciplinary action, a “letter of concern”. There was inherent unfairness in G being subjected to a five and a half hour disciplinary meeting starting at 1.50pm after he had commenced work that day at 6am. BP had not acted as a fair and reasonable employer in its reaction to G taking calls from his flatmate in the course of the disciplinary meeting. The procedural irregularities were significant and neither fair nor reasonable. G's dismissal was unjustifiable in terms of s103A ERA (personal grievance).

G was entitled to compensation made up of lost earnings and non-economic loss but with a reduction of 60 per cent on account of contributory behaviour.

Award to plaintiff.


On 25 March 2009, Mr Gaut was summarily dismissed from his employment with BP Oil New Zealand Limited (BP) for swearing at his manager. He had been employed as a customer services representative at the BP Connect outlet in Timaru. At the time of his dismissal he was 24 years of age.


Mr Gaut filed a statement of problem with the Employment Relations Authority alleging that he had been unjustifiably dismissed. In its determination, 1 the Authority found that Mr Gaut?s dismissal had been justified. Mr Gaut challenged that determination in this Court and sought a de novo hearing of the entire matter.


The key issue for determination is whether Mr Gaut?s summary dismissal and the investigation conducted by BP resulting in that dismissal met the test for justification prescribed in s 103A (as it then stood) of the Employment Relations Act 2000 (the Act). In other words, viewed on an objective basis at the time of the dismissal, were the actions of BP the actions a fair and reasonable employer would have taken in all circumstances.


Mr Gaut told the Court that between January 2008 and September 2008, before he began working for the defendant, he was employed at the independently owned BP Showgrounds Service Station as a customer services representative. That business closed down at the end of September 2008 and Mr Gaut was made redundant. The old service station was demolished and construction of the defendant?s new BP Connect outlet began.


Before he finished his employment at BP Showgrounds, Mr Gaut had been advised by BP that he would be employed at the new BP Connect outlet. He commenced duties on 4 November 2008. Mr Gaut had signed a written offer of employment dated 21 October 2008 and his terms and conditions of employment were those prescribed in the offer of employment and in the BP Employee Handbook. The handbook included a Code of Conduct which listed “what is considered as general and serious misconduct within our BP Stores.”


Relevant to the present case, the Code of Conduct defined “misconduct” as including, but not limited to: “Using insulting or abusive language that may cause offence to another person while at work.” The definition of “serious misconduct” included, but was not limited to: “Assault or inciting while on store business and/or at a store.”


Mr Gaut?s working hours were to be in accordance with the store shift roster determined by the store manager. His standard hours of work were set at 40 hours per week but he was required to be available to work reasonable overtime at the “company?s discretion.” The store manager at the BP Connect outlet at all material times was Ms Louise Lawrence.

The January 2009 incident

Before turning to the incident in March 2009 which resulted in Mr Gaut?s dismissal, it is necessary to make reference to an earlier incident in January 2009 which assumed some significance in the course of the hearing. On 20 January 2009, Mr Gaut received written notice to attend a “disciplinary interview” on 22 January. The notice was headed: “BP Oil New Zealand Ltd Interview Acknowledgement/Consent Form”. The reason for the interview was expressed in these words:

Using insulting or abusive language that may cause offence to another person while at work Refusal to perform usual duties or refusal to comply with fair, reasonable and lawful instructions of a manager or supervisor.


No particulars were provided of the alleged offensive language and misconduct. The written notice appeared to be a generic form used by BP for convening disciplinary meetings. It had a number at the top, “12/6”, which appeared to be the number allocated to that particular form (form 12/6). In the body of the form were two paragraphs which management were required to action:

Prior to this interview, I have been advised whether my actions are considered as (Mmgt to tick):

◻ General Misconduct ◻ Serious Misconduct

The purpose of the interview and the possible outcome of this interview are: (Mmgt to tick)

◻ No action ◻ Letter of concern ◻ Written Warning

◻ Termination of Employment

All six boxes had been ticked by management before Mr Gaut was asked to sign the form.


Mr Gaut arranged for Mr Glen Sole to be his representative at the disciplinary meeting on 22 January 2009. The BP representatives were Ms Louise Lawrence and Ms Melanie Popham, the retail area co-ordinator for the South Island. It appears that a number of matters were discussed at the meeting including Mr Gaut?s refusal to follow Ms Lawrence?s instructions when she had asked him to move a trailer in the forecourt of the service station; his refusal to take over the duties of another employee while other staff members refilled the chiller and his swearing around the store. At the meeting Mr Gaut admitted that he had used the word “shit” in the office.


The meeting continued on for some three hours. Ms Popham told the Court that: “Taking into account the fact Leon had sworn at Louise, back chatted and refused to follow a reasonable instruction, we considered disciplinary action was appropriate.” It was decided that Mr Gaut would be issued with a “letter of concern”. The one and a half page letter of concern dated 23 January 2009 was drafted jointly by Ms Popham and Ms Lawrence. It purported to summarise the meeting and record the undertakings Mr Gaut had given, including his agreement to refrain from swearing. Mr Gaut signed the letter of concern on 27 January 2009 acknowledging: “I have had the contents and meaning of this letter explained to me.”


There is nothing in the Code of Conduct providing for letters of concern. The Code of Conduct simply deals with warning letters stating that a first general misconduct offence may result in a first written warning, a second general misconduct offence may result in a final written warning and a third general misconduct offence may...

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