Mercer v Maori Television Service
| Jurisdiction | New Zealand |
| Judge | B S Travis |
| Judgment Date | 08 October 2010 |
| Court | Employment Court |
| Docket Number | ARC 62/09 |
| Date | 08 October 2010 |
In the Matter of a challenge to a determination of the Employment Relations Authority
[2010] NZEMPC 133
ARC 62/09
IN THE EMPLOYMENT COURT AUCKLAND
Challenge to a decision of the Employment Relations Authority which held the plaintiff's dismissal was justified — plaintiff had received a number of warnings for lateness and poor performance — disciplinary meeting held at the same time as a performance review — whether decision to dismiss the plaintiff was justified — impact of an expired warning — negative feedback from superiors was not disclosed to the plaintiff and he was not given an opportunity to respond — HR advisor was a key witness and complainant and also assisted in the disciplinary proceeding in her official role — effect of plaintiff's actions on amount of compensation under s124 ERA (remedy reduced if contributing behaviour by employee).
Shelley Eden, counsel for the plaintiff
Blair Edwards, counsel for the defendant
JUDGMENT OF JUDGE B S Travis
The plaintiff, Mr Mercer, has challenged a determination of the Employment Relations Authority which found that his dismissal on notice was a decision that a fair and reasonable employer would have reached in all the circumstances at the time.
Mr Mercer was employed as a camera operator by the defendant, Maori Television Service (MTS), in February 2004. From as early as October 2005 he had received a number of notices from MTS about his lateness. In April 2006 he received a formal written warning for lateness which was to remain on his personnel file for a period of six months. He received further notices of lateness in August and September 2006, May 2007 and in June of that year was required to attend a meeting concerning another allegation of lateness. He was advised that MTS expected there would be no examples of unreasonable timekeeping for the next six months and he was required to advise management in advance if he knew that he was going to be late.
There were two further incidents in July 2007, which resulted in a first written warning for poor timekeeping, issued on 2 August 2007, which was to remain on his personnel file for the next six months.
On 19 September 2007, a final written warning was issued relating to allegations concerning his driving on the North Western Motorway on 29 August and his lateness for work on 31 August 2007. The warning was expressed to be effective for a period of nine months from 14 September.
On 14 November 2007 it was alleged Mr Mercer was absent from work without notification. Mr Mercer claimed he had notified his team leader in advance and his team leader later accepted responsibility for the incident. However, it was still made the subject of a disciplinary investigation. The parties went to mediation and on 12 December 2007 resolved the disciplinary matter by written terms of settlement which was said to be in full and final settlement of all matters between the parties arising out of the employment relationship between them, up to and including the date of the agreement.
The terms of settlement record, amongst other things, that there was to be a final written warning, no further incidents of misconduct and that all communications regarding absences or lateness were to be made to either the facilities manager or the operations manager, one hour before his start time. The terms of settlement stated: “Failure to meet with these obligations will result in dismissal”. It is to be noted that the terms of settlement do not expressly state how long the final written warning was to remain in force.
The terms of settlement also provided for performance review hui (meetings) to be held at six week intervals with the operations manager and the human resource department, for a period of eight months. These would include completed feedback forms from clients regarding Mr Mercer's attitude and performance for that period.
Mr Mercer was represented throughout the investigation and subsequent mediation by John Minto, a union organiser with the Unite Union, to which Mr Mercer belonged.
A hohou rongo (peacemaking) meeting was held at MTS on 17 January 2008 during which various managers at MTS aired their concerns about Mr Mercer's work and attitude.
A first performance hui was held on 15 February 2008 which demonstrated that Mr Mercer had either “achieved” or “successfully achieved” all of the agreed “expectations” and performance indicators and that there had been positive client feedback. In relation to timekeeping it had been agreed as an expectation that the plaintiff would arrive 15 minutes before his shift to prepare for the day and would check in with management before leaving. If there was to be lateness he was to advise them in advance. It was noted that he had arrived early on most days and had notified management on the odd occasion that he had been stuck in traffic.
The second performance hui took place about 4 April 2008. This records that he had not “achieved expectations” in relation to communications with internal partners or in client feedback. For timekeeping, however, it was recorded that he had achieved, there had been no noted examples of lateness and he was usually early.
On 15 April Mr Mercer received a certificate for successfully completing a training course.
The operations manager, Jason Shazell, spoke to Mr Mercer immediately following an incident on 26 May 2008 when Mr Mercer was late for work by 30 minutes. Mr Mercer explained that this was due to an accident on the motorway. Mr Shazell took the matter no further at that time. On 27 May 2008 Mr Mercer arrived some 1 hour and 45 minutes late for his shift and when the matter was discussed with Mr Shazell shortly after the incident, Mr Mercer advised that he had misread the roster. Mr Shazell took this matter no further at that time. Mr Shazell advised Mr Mercer that the next performance review would be coming up soon. Mr Shazell claimed that on 9 June he verbally advised Mr Mercer that the third performance review would be held on 16 June 2008. Mr Mercer denied receiving that advice. Little turns on the point. However, the third performance hui was not held within the six weeks required by the terms of settlement.
On 13 June 2008 Mr Mercer called the facilities manager, Maawhi Torrance and left a voice message at 7.56am for an 8.15am start, stating that he was sick and would not be coming in. Mr Shazell did not discuss this incident with Mr Mercer at that time.
On the morning of 16 June, Mr Shazell was advised by Gwendolyn Arago — Kemp, a senior human resource advisor at MTS, that she had seen Mr Mercer arrive that morning at 9.15am for a 9am start. This was initially done by way of email. After receiving that advice, Mr Shazell approached Mr Mercer and asked him if he was happy for the third performance review to proceed that day or if he needed more time to prepare first. Mr Shazell did not mention any of the incidents of lateness at that time.
Later that afternoon Mr Mercer invited his Team Leader, Bretton Richards, to come along to the performance review if he wanted to, to see what it was all about.
Ms Arago-Kemp, Mr Shazell and Mr Richards were all present at the start of the meeting, although Mr Richards left part way through.
The hui did not follow the format of the other performance reviews. Instead, nine instances of alleged misconduct were raised with Mr Mercer. After discussion Mr Mercer thought these were reduced to four issues:
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a) his lateness on 26 May 2008 allegedly due to an accident on the motorway;
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b) his lateness on 27 May 2008 when he allegedly misread the roster;
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c) his failure to call in within an hour of his 8.15am start on 13 June; and
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d) his alleged late arrival at 9.15am that morning.
Mr Shazell's evidence was that a fifth matter of concern was discussed, which was said to be a general deterioration of Mr Mercer's performance and attitude, as evidenced by poor client feedback since the last review.
Ms Arago-Kemp's evidence was that the four allegations of lateness amounted to breaches of the settlement agreement and would need to be addressed in the context of a disciplinary process. I am not satisfied that this was made sufficiently clear to Mr Mercer at the meeting, although I find it was the view of both Ms Arago-Kemp and Mr Shazell before the meeting even began.
There was an issue between the parties as to Mr Mercer's responses, in particular to the allegation that Ms Arago-Kemp had seen him arrive at 9.15am that morning. It was Mr Mercer's evidence that he had not been late that morning so he claimed that he had denied the allegation and said that he could not recall having seen Ms Arago-Kemp that morning. Ms Arago-Kemp recorded in her notes that Mr Mercer told them he was running late, the start time was 9am for a Native Affairs programme (which Mr Mercer was involved in filming), although the start time varies on the show depending on the format, and ideally he should have been there at 9am. There is an issue between the parties whether Mr Mercer made those admissions.
Ms Arago-Kemp, in cross-examination, accepted that Mr Mercer did not know this matter was going to be raised with him and he would have been surprised. She claimed that “he kind of accepted that he had been running late”. She also claimed that she wrote down exactly what he had said as he was responding because it was very important. After being closely questioned on the issue, she accepted that Mr Mercer was actually unsure whether he was late or not, rather than admitting he was late. She finally accepted that he never actually admitted on 16 June that he was running late. That corresponds with Mr Mercer's evidence and I resolve that issue in his favour.
Ms Arago-Kemp drew a diagram...
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Mercer v Maori TV Services
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