Mark Allen v C3 Ltd NZEmpC AK

• Jurisdiction: New Zealand
• Judge: Christina Inglis
• Judgment Date: 31 July 2012
• Court: Employment Court
• Docket Number: ARC 94/11
• Date: 31 July 2012

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

Between

Mark Allen

Plaintiff

and

C3 Limited

Defendant

[2012] NZEmpC 124

ARC 94/11

IN THE EMPLOYMENT COURT AUCKLAND

Challenge to determination of the Employment Relations Authority that employee had been justifiably dismissed for swearing and making an obscene gesture at manager — manager had played crucial role in disciplinary proceedings and influenced decision to dismiss — whether dismissal was procedurally and substantially flawed — whether employee had an existing right to have his remedies assessed and awarded under repealed s125 Employment Relations Act 2000 (“ERA”) (remedy of reinstatement) as his dismissal pre-dated the 2011 amendments to ERA — whether the remedy of reinstatement was practical and appropriate.

Counsel:

W Nabney and R Nabney, counsel for plaintiff

M Sharp, counsel for defendant

JUDGMENT OF JUDGE Christina Inglis

Introduction

1 Mr Allen was dismissed by his employer, C3 Limited (C3), on 16 March 2011 for serious misconduct. He had earlier told his manager to “get fucked”, while making an obscene gesture at him as he walked out of a meeting convened to discuss whether or not he was entitled to a day off in lieu. Mr Allen also ignored a request from his manager to return to the meeting. Mr Allen admitted this conduct during the disciplinary process, but did not apologise for it during the meeting on 16 March 2011. C3 considered that Mr Allen's actions constituted serious misconduct warranting dismissal.

2 The Employment Relations Authority found 1 that, given the plaintiff's previously unblemished employment history and the fact that he was upset at the time he swore at his manager and believed the meeting was taking place during non—work time, it would have been reasonable to allow a cooling off period. The Authority concluded, however, that by the time the 16 March meeting took place, ample time had passed for the plaintiff to reflect on his improper conduct and that the lack of remorse shown at the meeting meant that the defendant's view that the plaintiff's actions amounted to serious misconduct was one that a fair and reasonable employer would have come to, given that the improper conduct had been directed towards a manager and occurred in front of other, subordinate, employees.

3 The Authority concluded that the defendant had carried out a full and fair investigation, and that the plaintiff had been justifiably dismissed from his employment with the defendant.

4 Mr Allen challenges the Authority's determination. He contends that his dismissal was unjustified and that he ought to be reinstated to his previous role. The challenge was heard on a de novo basis.

Factual background

5 Mr Allen was employed by C3 as a fork lift driver, based at Mt Maunganui. He had been employed by the company for 15 years. The plaintiff was asked, and agreed, to work the statutory holiday for Auckland Anniversary Day, on 31 January 2011. He was due to commence work at 7am. Earlier that morning, a fellow employee (Mr Thompson) considered that due to progress on outstanding work being made faster than expected, the plaintiff's services would likely not be required after all. Because he knew that the plaintiff's supervisor was not due at work until 8am, Mr Thompson sent the plaintiff a text message. The wording of the text message is in dispute. According to Mr Thompson, the text message said:

Sleep in if you want, the ship's finished.

6 The plaintiff says that he had his cell phone switched off and did not receive the text before he arrived at work, as previously arranged.

7 In the event, the plaintiff arrived at work at 6.45am and was informed by Mr Thompson that he was not required to work and that a text to this effect had been sent to him. The plaintiff says that it was at this point that he realised his cell phone was switched off and that he turned it on in front of Mr Thompson, finding the text message. He says that the text message said:

Come in if you want ship down to one gang.

8 Neither the plaintiff nor Mr Thompson retained a copy of the text message. Mr Thompson could not exclude the possibility that the text message was in the terms identified by Mr Allen, and he was unclear about the detail of what had occurred on 31 January in evidence. If Mr Allen did not check his messages prior to arriving at work then the content of the message is irrelevant. There was no requirement that he be contactable by cell phone. It was clear that the company had Mr Allen's cell phone number and his landline number. There was no dispute that Mr Allen had been contactable by landline, and that the company had not attempted to get in touch with him via this means. I am prepared to accept Mr Allen's evidence that he had not checked his cell phone before arriving in at work.

9 Mr Thompson offered the plaintiff half an hour's work once he had arrived. This would have made him eligible for a payment and a day off in lieu. Mr Allen declined the offer, and returned home at 7am. Accordingly, he was at the workplace, and not doing any work, for 15 minutes.

10 Mr Allen later applied for half an hour's pay and a day off in lieu, noting this on his timesheet. Unbeknownst to Mr Allen his immediate manager went to see Mr Payne (the Manager of Stevedoring and General Cargo at Mt Maunganui wharves). Mr Payne instructed the payroll officer to twink out the half hour claimed for, and to disallow the day in lieu request. None of this was discussed with Mr Allen or otherwise communicated to him. Mr Payne accepted that, in hindsight, it may have been preferable to have done so.

11 It became apparent to Mr Allen sometime later that he was not getting paid for the half hour he had claimed and nor was he getting the claimed day in lieu. He became aware of this because the additional pay did not show up in his payslips. He went to speak to his manager, and then Mr Payne. He arranged a meeting for 3pm on 22 February. Mr Allen had started a 12 hour shift at 3.00am on that day. He was entitled, during that 12 hour shift, to three half hour breaks. Mr Allen took the third of these breaks at the end of his shift. It was accepted that he could, in accordance with usual practice, have left work at that time if he had chosen to do so. Instead he went to see Mr Payne about concerns he had about his claim. He asked Mr Thompson to attend the meeting with him. He had it in mind that Mr Thompson would be able to confirm what the text message had said. While Mr Thompson did attend the meeting, he said nothing during it. He did not confirm Mr Allen's recollection of the text message and nor did he make it known that he believed it said something different.

12 Mr Allen explained that he had had his phone switched off and that, when he had turned it on, the message had said “come in if you want”. He said that he had come in, as planned, and was entitled to half an hour's pay and a day off in lieu. Mr Payne told Mr Allen that as he had been sent a text message advising him that he did not need to come in, and as it was a requirement that he be contactable, he was not entitled to pay and a day off in lieu. Mr Allen was not drawn to what his manager had to say, and responded by advising that he understood Mr Thompson did not have authority to instruct him not to attend work and that he should, in any event, have been contacted on his landline rather than by cell phone.

13 Mr Allen became upset, stood up and said “is that it” to which Mr Payne said “yes, that's it”. Not surprisingly, the plaintiff took this to mean that the meeting, which he had requested and which was convened to discuss his application for a day off in lieu, had come to an end. He left the office. However, Mr Payne called him back saying words to the effect that he had not finished speaking to Mr Allen. It was at this point that Mr Allen told Mr Payne to “get fucked” and made an obscene gesture with his middle finger. He did not return to the meeting. Rather, he departed from the office. There is no dispute that this occurred.

14 Mr Payne said that he was very concerned about the plaintiff's actions, and that he had never been spoken to in such a way before. His concerns, he said, were exacerbated by the fact that Mr Allen had sworn at him in front of other employees and had refused to obey his instruction to return to the room. Mr Payne took his concerns to the Employee Relations Manager (Mr Pritchard). A decision was made to commence an investigation. Mr Payne wrote to Mr Allen on 24 February 2011, advising him that the company was going to carry out a disciplinary investigation and that he (Mr Payne) would like to meet with Mr Allen to obtain an explanation. My Payne advised that the meeting would be conducted by Mr Pritchard with himself in attendance to take notes. The letter attached extracts from the company's code of conduct, including examples of behaviour which amounted to serious misconduct and which could lead to instant dismissal. The examples included:

The use of abusive and/or obscene language and gestures and … the refusal to carry out a reasonable instruction from a manager or supervisor.

15 A meeting was held on 1 March 2011. Mr Payne and Mr Pritchard were present. Notes of the meeting record that Mr Allen admitted the conduct complained of. Mr Payne wrote to Mr Allen following the meeting advising that since the earlier meeting:

We have further investigated this matter and discussed the text sent to you by [Mr Thompson] in fact was ‘sleep in it you want, ships finished’.

16 The letter advised Mr Allen that he was required to attend a formal disciplinary meeting on 16 March 2011. The letter stated that the meeting would be conducted by Mr Payne, and that Mr Pritchard would be in attendance to “take notes.” Mr Allen was invited to bring a support person or representative with him, which he did....