RANDWICK MEAT Company Ltd v DALE BURNS NZEmpC WELLINGTON

• Jurisdiction: New Zealand
• Judge: A D Ford
• Judgment Date: 21 October 2015
• Docket Number: EMPC 174/2015
• Court: Employment Court
• Date: 21 October 2015

[2015] NZEmpC 188

IN THE EMPLOYMENT COURT WELLINGTON

EMPC 174/2015

In The Matter of an application for orders

BETWEEN

Randwick Meat Co Limited

Plaintiff

and

Dale Burns

Defendant

Counsel:

S Waring, counsel for the plaintiff

B Buckett, counsel for the defendant

Application for an order under that the Employment Relations Authority investigate a claim for unjustified dismissal which had been removed to the Employment Court — the defendant employee had sought removal of the proceeding to the Court on the basis that there were already two determinations of the Authority before the Court which were part of the same factual matrix — the proceedings before the Court dealt with a warning that the employee had been given and a subsequent suspension — the employee was then dismissed and was claiming for unjustified dismissal — the employer submitted that the dismissal grievance was the most significant of the issues arising from the employment relationship and, as such, removal of that matter to the Court would preclude the company from the benefits of having the matter investigated by the Authority with full process — consideration of counsel's role where there was personal involvement in the factual narrative (including allegations of hostility and aggression) — whether the test for removal required a focus on the overlap of issues — whether the removal application was an attempt to bypass the normal process.

The issue was: whether the test for removal required a focus on the overlap of issues; whether the removal application was an attempt to bypass the normal process.

Held: The test for removal under s178(2)(c) was whether the Court already had before it proceedings which were between the same parties and which involve the same or similar or related issues. This did not necessarily involve an issue by issue analysis as to what evidentiary matters in the respective proceedings might or might not overlap or whether certain matters could be dealt with separately. That type of exercise was always a difficult undertaking at the interlocutory stage of a proceeding where, as in the present case, the facts were very much in dispute.

Once it was established that the proceedings were between the same parties, the test envisaged a more holistic consideration of the relevant issues. The Authority's approach was correct when it considered whether the issues already before the Court were “an intrinsic part of the factual matrix pertinent to the dismissal claim”. In other words, although the relevant issues in the three sets of proceedings were not identical, they were between the same parties and they were sufficiently similar or related to justify removal.

Nor should the matter be referred back to the Authority for investigation in the exercise of the Court's residual discretion. The case was complicated by the fact that B was a long serving employee of Randwick but he had never signed an employment agreement. It was clear that, in the absence of a signed employment agreement, an issue in each of the proceedings was going to relate to the terms and conditions of B's employment and the precise nature of his duties and responsibilities. This was a “common thread” running through all the proceedings.

An applicant should not be able to manipulate the system by using the removal procedure to bypass the normal Authority investigation process ( Flight Attendants and Related Services (NZ) Association Inc v Air New Zealand Limited), but that was not the position in this case. The Court should not lightly take a step which would deprive a party of its important right to challenge or appeal an Authority's determination in this Court. However, the statutory purpose of s178(2)(c) was that issues affecting the same parties, and which were the same or similar or related, should be dealt with expeditiously in one venue and at one time.

Removal would not deprive the parties of mediation opportunities. There had already been several unsuccessful mediations and the Court had a statutory obligation under s188 ERA to direct further mediation before it heard a matter unless it considered mediation inappropriate for one or other of the reasons stated in s188(2)(b).

Given the nature and extent of their personal involvement in the factual narrative (including allegations of hostility and aggression) counsel for both parties would need to give careful consideration to the warning in Vector Gas Limited v Bay of Plenty Energy Ltd about the risk of practitioners being so personally involved in the matters which were being litigated that they lost their objectivity. Counsel would need to consider whether it was appropriate for them to continue acting.

Application for an order referring the matter back to the Authority dismissed. The substantive dismissal proceeding was to be consolidated with the final warning and suspension challenges.

INTERLOCUTORY JUDGMENT OF JUDGE A D Ford

Introduction

1 On 19 December 2014 the defendant, Mr Dale Burns, was dismissed from his employment with the plaintiff company. He issued proceedings in the Employment Relations Authority (the Authority) claiming that the dismissal was unjustified because his conduct was not serious enough to warrant dismissal and the disciplinary process was conducted in an unfair and unreasonable manner. The plaintiff, Randwick Meat Co Limited (Randwick), filed a statement in reply in the Authority claiming that Mr Burns had been justifiably terminated from his employment following a procedurally fair and substantively justified disciplinary process.

2 Mr Burns also made application to the Authority to remove his claim to this Court to hear and determine, pursuant to s 178 of the Employment Relations Act 2000 (the Act), without the Authority investigating it. In a determination dated 1July 2015, the Authority granted the removal application 1 On 28 July 2015, Randwick made application to this Court, pursuant to s 178(5) of the Act, for an order that the Authority investigate the matter on the basis that it was not properly removed. The application, which has generated a considerable amount of documentation, is vigorously opposed.

Background

3 The following background summary is compiled from two determinations of the Authority which are already before this Court 2 and other documentation which was before the Authority when it issued the determination of 1 July 2015.

4 Randwick has operated as a meat company in Lower Hutt for a number of years. At the time of his dismissal, Mr Burns had been employed by the company for approximately 23 years. No written employment agreement had ever been signed between the parties. Initially, Mr Burns worked as a butcher but left after an argument with the owners and returned to the business in 1991 in a role that required him to visit customers and create new business. In his statement of problem, he described himself as a “Manager” but in its statement in reply, Randwick alleges that his role was primarily to attract business including sales and only to manage when the owners were on leave. The co-owners of Randwick are Louise and Raymond Fleetwood.

5 Towards the end of 2013, Mr and Mrs Fleetwood became concerned about anecdotal evidence from customers that Mr Burns had not been seen by them for quite some time. As a result they decided to install a Global Positioning System (GPS) in Mr Burns' work vehicle. During the 2013 – 2014 Christmas/New Year period Mr Burns sustained a personal injury and was off work for approximately three months. Upon his return he was required to attend a meeting on 28 March 2014 which was arranged to discuss a variety of work-related matters including informing Mr Burns about the GPS device that had been fitted to his vehicle. At the meeting, Mr Burns was handed a draft employment agreement to consider and told to return it with any comments. Discussions were held on other

matters including Mr Burns' hours of work and role. Mr and Mrs Fleetwood requested Mr Burns fill in a daily call cycle report on customers he had seen. Mr Burns did not sign the employment agreement.

6 After the meeting on 28 March, Mr and Mrs Fleetwood began to investigate fresh concerns that Mr Burns was not properly attending to his duties; that he was leaving work early and that he was not completing the daily call cycle reports. An investigation meeting was held on 27 May 2014 at which the parties were represented by their legal advisors but the outcome of that meeting (which was recorded) does not appear to have been particularly successful. It was described in one of the Authority's determination in these terms 3

• [23] … The meeting deteriorated and primarily became a meeting between the parties' representatives making their issues and taking set positions on the law and inviting various responses from each other, with the parties involved only incidentally. This distracted the parties' attention from the underlying issues that the Fleetwoods requested explanations from Mr Burns about.

7 Nevertheless, Mr Burns' lawyer, in letters dated 28 May and 3 June 2014 respectively, did present submissions on his behalf addressing the various allegations.

8 On 5 June 2014, Randwick wrote to Mr Burns confirming the findings resulting from its investigation. In short, it found that a number of the allegations relating to Mr Burns' unauthorised absences from work and failure to carry out instructions had been substantiated, including the request to complete the call cycle reports. The letter of 5 June 2014 concluded that Mr Burns' conduct had amounted to misconduct and it stated that the letter was to be regarded as notice of “final warning”. On 2 July 2014, Mr Burns raised a personal grievance challenging the final warning. The final warning grievance was eventually investigated by the Authority on 1 and 17 September 2014. In its determination dated 30 October 2014, the Authority dismissed Mr...