LUKY CLARKE v Clarke v Affco Ltd
 NZEmpC 17
IN THE EMPLOYMENT COURT AUCKLAND
Simon Scott and and Anamika Singh counsel for plaintiff
Graeme Malone, counsel for defendant
Challenge to an Employment Relations Authority decision which dismissed the plaintiff's claims of unjustified dismissal — plaintiff refused to allow his vehicle to be searched for drugs — intimidation of employee conducting search — collective agreement provisions concerning disciplinary procedures not strictly complied with — whether suspension and dismissal were actions of a fair and reasonable employer — whether compliance with spirit rather than letter of collective agreement rendered dismissal unlawful — whether Employment Relations Authority had applied incorrect test for justification under s103A Employment Relations Act 2000.
Held: The Authority had applied an incorrect test under s103A ERA. It was not a matter of whether dismissal was an option available to a fair and reasonable employer in all the circumstances but, rather, whether in all those circumstances, a fair and reasonable employer would have dismissed C. However, applying the current and more exacting s103A ERA, the Authority's conclusion had been correct.
There had been procedural omissions or failures leading to the dismissal, including failing to have two union officials present at the first meeting and failing to allow a further suspension for negotiation with the union. However the employer's process did meet the spirit of the collective agreement requirements, if not its letter. The failures did not disadvantage the defendant materially. The case was a good example of the Court's longstanding practice of having regard to substantial procedural fairness and reasonableness, as opposed to minute and pedantic scrutiny. The fairest way of dealing with AFFCO's breach was for it to affect any order for costs.
There was no suggestion C would have been better represented by two union officials than he was by one. The evidence established that the union had failed or refused to take C's case further after his dismissal and C had obtained the services of a solicitor promptly. The suspension and dismissal had been open to a fair and reasonable employer.
C's account of events was not accepted. In a workplace where there was potentially dangerous machinery, AFFCO needed to be assured that employees would deal with conflict and anger safely. C's intimidation of L using a vehicle was contrary to that reasonable expectation. This justified treating the incident (and thereby C), not merely on its merits, but as an indication of C's response to workplace conflict.
JUDGMENT OF CHIEF JUDGE G L Colgan
This challenge to the Employment Relations Authority's determination 1 dismissing Lucky Clarke's proceedings decides whether he was suspended and dismissed unjustifiably and, if so, the remedies to which he may be entitled. Mr Clarke was first suspended and then dismissed following events at an early morning drug check point at the entry to AFFCO's Horotiu meatworks near Hamilton where he was an employee. There is no suggestion that Mr Clarke was involved with unlawful drugs and this judgment does not address questions of the lawfulness of drug searches of employees entering workplaces.
The relevant facts are as follows. Mr Clarke, a slaughterman at the Horotiu plant for the previous 3 seasons (but on and off also for almost the past 40 years), arrived at the staff car park gate between 5.30 am and 5.45 am on 7 July 2009. He was alone, driving his own car. Managerial staff were concerned about unlawful drugs coming on to the plant and were stopping vehicles entering its premises and searching them with trained dogs. What happened with Mr Clarke has always been indispute and so must be determined as a matter of evidence.
The company's case, which formed the basis of its finding of serious misconduct and Mr Clarke's dismissal, is that he refused to heed clear signals to stop and intimidated and endangered the safety of a supervisor engaged in the drug search exercise, Yvonne Lloyd.
From the variety of accounts (including conflicting accounts given by the defendant's witnesses) I find most probably that the following events led to Mr Clarke's dismissal.
Early on the morning of 7 July 2009 before he was due to begin his shift at 6 am, Mr Clarke drove to the entry to AFFCO's Horotiu plant in his SUV. Other employees' vehicles were stopped inexplicably in a queue outside the gate to the employee car park. Mr Clarke became irritated by the hold up and then more so when he was stopped by a supervisor, Manu Akapita, who told him that his vehicle was to be searched for illegal drugs. Mr Clarke responded by saying loudly and aggressively to Mr Akapita: “Fuck that, I don't do drugs.” He then began to drive forward towards the staff car parking area within the plant grounds. As he did so, Ms Lloyd was standing about one and a half to two metres in front of Mr Clarke's vehicle indicating for him to stop by a combination of one raised open hand palm and the raising and lowering of an illuminated torch in his direction. Mr Clarke's response to Ms Lloyd's presence immediately in front of his vehicle was to shout through his open driver's window at her: “Get out of the fucking way.” He then continued to drive towards her. Ms Lloyd moved rapidly out of the way and Mr Clarke continued to park his car in the staff car park but not before abusing a drug detection dog handler to whom he had been directed by Mr Akapita.
At the conclusion of this experimental or training drug search operation, the participants engaged in a debriefing in which there was discussion of Mr Clarke's conduct. As a result, a manager was deputed to interview him and this took place at approximately 8 am that morning. Mr Clarke had with him a union site delegate but it appears that the plaintiff and his representative concentrated more on objecting to the conduct of the interview by the contractor engaged by AFFCO to investigate drug possession at its site, rather than on the merits of what had occurred. Mr Clarke and his union representative shouted intemperately and criticised the contractor's entitlement to conduct the interview to such an extent that the manager decided both that it should conclude and that further investigation was warranted. From other evidence and from observing Mr Clarke give evidence in this case, I am satisfied that he can be impatient, even short-fused, and does not feel constrained from using abusive language to others in the work environment. That is consistent with his reported demeanour and conduct on the day in question. Mr Clarke was then suspended from his employment until a second meeting which took place two days later on 9 July 2009.
Mr Clarke was again represented by the union (two officials this time) and  the allegations against him were then outlined and his response sought. Mr Clarke's account of events was that he was neither asked to stop nor saw Ms Lloyd in front of his vehicle at any stage, although he acknowledged her presence and that of others in the vicinity. Mr Clarke says that he had tooted his horn and then called out abusively to the driver of a vehicle that had stopped in front of his, blocking access to the staff car park. He denied abusing or driving towards Ms Lloyd.
Faced with a stark conflict of accounts of relevant events, AFFCO decided to undertake further investigations over the following week. This it did by interviewing, and taking short written statements from, three supervisors present at the time of the incident including Ms Lloyd.
When there was a third and final meeting on 16 July 2009, those statements and other written information obtained by the employer were disclosed to Mr Clarke. He, largely through his union representatives but at times in person, continued to deny any wrongdoing and says that the witnesses from the company were attempting to “stitch him up.” The plant manager responsible for the decision considered the position and that it was a matter of which of the accounts of the incident he believed. Although there were some discrepancies between the accounts of the supervisors, they were unanimous that Ms Lloyd had been standing in front of Mr Clarke's vehicle, that he drove towards her shouting abusively that she should get out of the way, and that she had done so very promptly to...
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