Roslyn Service v Young Mens' Christian Association of Christchurch Incorporated
 NZEmpC 8
IN THE EMPLOYMENT COURT
In the Matter of a challenge to a determination of the Employment Relations Authority
Jeff Goldstein, Counsel for Plaintiff
Peter Zwart, Advocate for Defendant
Challenge to an Employment Relations Authority decision upholding the plaintiff's claim for unjustifiable dismissal but dismissed her claim that she had been unjustifiably disadvantaged by being unfairly suspended prior to her dismissal — plaintiff was senior employee of the defendant — dismissed over a historical incident — plaintiff hired an offender on home detention who allegedly raped a student in his class — no prior disciplinary action taken at time of incident — claim for lost wages and compensation for humiliation, loss of dignity and injury to feelings — whether plaintiff had contributed to her situation by abandoning claim for reinstatement.
Held: The incident in question had been appropriately brought to the attention of the employer by the employee and the employer, through its CEO at the time, T, determined that the matter had been handled adequately by S and no disciplinary action was necessary. Some 20 months later a new CEO heard about the historical incident and proceeded to re-open the matter as a formal disciplinary investigation. Except in exceptional circumstances, which had not existed in this case, such action was inherently unfair and unjust and was not the type of conduct that a fair and reasonable employer would have embarked on. O-S had cold-called T and had failed to provide him with any written information. A fair and reasonable employer would have provided T with written information and then asked for a detailed response. Instead of accepting S's statements about the incident in good faith at their face value, O-S had preferred to draw adverse conclusions to S from the cold-call with T and his vague and ambiguous email response.
In terms of s103A ERA, both the suspension and dismissal were substantively unfair and procedurally unjustified. Given it was an historical incident, S was not given adequate time to consider the allegations, research files or take advice before responding. O-S had already formed fixed views which she had not been prepared to change.
Given the YMCA's opposition to S's reinstatement it was not fair to say she had abandoned her claim for reinstatement. In spite of making reasonable efforts to obtain other employment S had been unsuccessful.
S was entitled to the full amount of wages under s128(3) ERA (reimbursement). An award of $25,000 was made for for humiliation, loss of dignity and injury to feelings. S was also awarded sums for the loss of the use of car provided by the YMCA and the employer contribution to her KiwiSaver Fund.
JUDGMENT OF Judge A D Ford
The plaintiff, Ms Roslyn Service, worked at the Young Mens' Christian Association (the YMCA) in Christchurch as an Education Manager. She had been employed by the YMCA in various senior roles for close to 20 years. On 7 December 2008, Ms Service was summarily dismissed from her employment. The grounds for her dismissal, in essence, were that she had exercised errors of judgment in relation to the appointment of an outside tutor to run a mechanics' course for a YMCA class. The tutor in question had a list of convictions and was on home detention at the time. The mechanics' course was to be run from his home. It was alleged that he and one of his colleagues raped a 15-year-old female student who was a member of the mechanics' course class.
In its determination 1 the Employment Relations Authority (the Authority) upheld the plaintiff's claim that she had been unjustifiably dismissed but the Authority dismissed her other claim that she had been unjustifiably disadvantaged by the YMCA in unfairly suspending her prior to the dismissal. In relation to her unjustified dismissal, the Authority found substantial contribution by the plaintiff and reduced her remedies by 50 percent on that account.
The plaintiff challenged the dismissal of her unjustified disadvantage claim and the finding that she had contributed to the situation that gave rise to her unjustified dismissal grievance. In response the defendant challenged the finding of unjustifiable dismissal. As a result, all aspects of the employment relationship problem came before the Court for hearing de novo.
The principal purpose of the YMCA is described in an appendix to Ms Service's employment agreement in these terms:
To meet and relate to the needs of people in their communities, and where they work, in a way that will encourage them to develop as individuals, express their own needs and reach their full potential. It does this through programmes and relationships, involving YMCA workers with special youth, community, recreational and motivational skills.
The YMCA on a national basis provides a range of community programmes and services including, in the case of nine of the YMCAs, youth education programmes. The education programmes are funded through government contracts.
The Court heard how in Christchurch, the YMCA Education Centre offers programmes for youths between the ages of 13 to 24 years. On average up to 200 young people pass through the centre every year. One of the youth education programmes on offer is what is known as “Alternative Education” or Te KaupapaKiri Kairangi. This programme is especially designed for youngsters between the ages of 13 and 16 years who have, for one reason or another, dropped out of the mainstream education system. The participants in the programme are referred to as “TK3 students”. The classes run between 9.00 am and 2.30 pm (Mondays to Thursdays) and on Friday mornings. The majority of the TK3 students are also involved with agencies such as CYFS, police, Youth Justice, alcohol and drug centres, anger management and psychological services. Some of them belong to gangs and/or come from gang-related families.
In 2008 there were approximately 22 students in the TK3 class. The number would vary because one of the YMCA objectives was to try and get the students back into school or some other educational establishment or arrange employment. There were a number of course options available for TK3 students such as cooking, jewellery making, sewing, arts and crafts, bone carving and the like. There were three TK3 tutors, namely Ms Jonelle Ward who was the Team Leader, Mr Adam Tai and Mr Stephen Scott. Ms Ward had been engaged in tutoring work for some five and a half years. As Team Leader she was responsible for planning the TK3 programming on a term by term basis. She reported to Ms Service.
Ms Service is a qualified secondary school teacher with over 20 years' management experience in four different organisations. She is 54 years of age, married with two children both of whom attend Canterbury University. Between the years 1986 and 1998, Ms Service was employed by the Christchurch YMCA in various senior positions which she described as Director of Outdoors, Director of Youth and Outdoors Department and Manager of Recreation Industry Training. After a break in 2002 Ms Service returned to work for the Christchurch YMCA in the capacity of Education Director. Her individual employment agreement was dated 2 December 2002.
As Education Director Ms Service was responsible for the management and all activities of the YMCA Education Centre in Christchurch. She had authority to manage all courses at the Education Centre, to negotiate contracts and to deal with the various YMCA funding agencies. She was also responsible for managing all the staff at the Education Centre. At the material time the staff totalled 18, comprising both administration staff and tutors. Ms Service reported directly to the Chief Executive Officer (the CEO) who at the time was Mr Peter Tindall.
For seven years Ms Service was also on the National YMCA Education Programme Executive Committee that had oversight and quality management control of all YMCAs' involvement in education within New Zealand. This role involved her visiting and mentoring smaller YMCAs. From 2004 she was the Secretary of the Alternative Education National Body. In 2009 she joined the Regional Advisory Group of Ako Aotearoa, the National Centre for Teaching Excellence.
Ms Ward told the Court that either just prior to Christmas 2007 or in January 2008, at a point when they were planning the TK3 first term programme for 2008, one of the tutors, Mr Tai, came to her with a plan to run a mechanics' beginner course. He explained that his friend, Mr Mike Smith, who was on home detention because of traffic convictions, had a garage at his home from which he carried out auto repairs. Mr Smith was prepared to run the course as a “volunteer”. Ms Ward said that she was concerned that the proposal “sounded a bit dodgy” but as Mr Tai was very keen on the idea, she suggested that he seek permission from Ms Service to include the course in the programme. Mr Tai had been a tutor for approximately three years.
Ms Service told the Court that initially she was “uncertain about this arrangement” but she was assured by Mr Tai that Mr Smith's convictions related to vehicle matters. She questioned Mr Tai about the type of vehicles that Mr Smith worked on. Mr Tai assured her that Mr Smith was a mechanic...
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