The Chief Executive of the Department of Corrections v Aaron Waitai and Ors

• Jurisdiction: New Zealand
• Judge: Judge B S Travis
• Judgment Date: 21 December 2010
• Court: Employment Court
• Docket Number: WRC 24/09
• Date: 21 December 2010

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

Between

The Chief Executive of the Department of Corrections

Plaintiff

and

Aaron Waitai and Ors

Defendant

[2010] NZEmpC 164

WRC 24/09

IN THE EMPLOYMENT COURT WELLINGTON

Challenge to an Employment Relations Authority determination which found that the defendant had raised a personal grievance within the 90 day time period — defendant a corrections officer who was involved in an altercation with a prisoner and dismissed for serious misconduct — whether the defendant had made reasonable arrangements for his union representative to raise a personal grievance — whether the union representative had failed to raise the grievance — whether leave should be given to file a grievance out of time under s114 Employment Relations Act 2000 (raising a personal grievance).

Counsel:

Karen Spackman, counsel for the plaintiff

G W Calver, counsel for Aaron Waitai

JUDGMENT OF Judge B S Travis

1 The plaintiff, the Chief Executive of the Department of Corrections, (Corrections) has challenged a determination of the Employment Relations Authority, issued on 15 July 2009 1, which found that Aaron Waitai and two other former Corrections Officers had raised their grievances with Corrections within the 90 day period required by law. Whether the grievances were raised in time is the first issue for determination in this challenge. If they had not been, the second issue is whether leave should be given to raise the grievances after that period.

Factual background

2 The plaintiff operates prisons under the Corrections Act 2004. The first defendant, Aaron Waitai, initially commenced his employment with the plaintiff on 22 April 1998 as a Corrections Officer but was appointed to the position of Senior

Corrections Officer on 31 August 2001. The second defendant, David Kennedy, and the third defendant, Motusaga Ese, were employed by the plaintiff as Corrections Officers

3 An issue arose at the commencement of the hearing as to whether all three of the defendants were still pursuing these matters. No recent instructions had been received from Messrs Kennedy and Ese. As a result of submissions, I adjourned the challenges against Messrs Kennedy and Ese, sine die, awaiting the outcome of the present challenge involving only Mr Waitai.

4 An incident occurred on 7 July 2006 that gave rise to an allegation by a prisoner that Messrs Waitai and Kennedy had assaulted him in a “strip search room” at Rimutaka Prison while Mr Ese had stood guard outside the door. This incident was investigated by the plaintiff over some 18 months. It was ultimately determined that the three defendants had each engaged in serious misconduct and they were dismissed on 21 December 2007, effective immediately.

5 Mr Beven Hanlon the elected president of the Corrections Association of New Zealand (CANZ) a registered union representing many of Corrections employees and himself a Senior Corrections Officer, became involved in the investigation involving the three defendants in late 2006. He became concerned at the way in which the investigation was being conducted. On 21 March 2007, he wrote to David East, the Regional Manager of the Rimutaka Prison, complaining of the delays in the investigation, the stress it was causing to the defendants and stating that the matter was now being passed to their solicitor and that they would be lodging personal grievances on behalf of their members.

6 On 22 March 2007 Mr Smith, the manager of the Rimutaka Prison, wrote to each of the defendants sending them each a copy of a report on their employment investigation to enable them to make submissions on the findings prior to any disciplinary action being taken. They were reminded of their right to obtain representation. Mr Hanlon sent in submissions about the report alleging serious flaws in the investigation, stating that the investigation should be stopped and the officers assisted to return to work as soon as possible.

7 Leanne Field, the Regional Manager of Wellington Regional Prisons, responded on 30 May 2007, inviting CANZ to make further and final submissions on the findings and recommendations in the investigation report by 11 June. On 20 July Mrs Field wrote to Mr Hanlon saying she had not received any response to her invitation for them to provide submissions, that she now accepted the findings and recommendations in the final report, namely that the allegations of serious misconduct against the three defendants were upheld and that a suitable disciplinary outcome would be their dismissals. The letter advised that before the imposition of the disciplinary action a further and final opportunity to make submissions regarding the intended course of action could be made by 11 June 2007. An extension to 27 July 2007 was later given.

8 In mid-2007 Mr Hanlon had instructed Tony Snell, a Barrister, to provide comments regarding the preliminary investigation findings which Mr Snell did by letter to Mrs Field on 27 July 2007. That letter also raised issues about the investigation process concerning the viewing of CCTV tapes of the incident, alleged inordinate delays and other matters of concern. One of those was that another officer ought to be interviewed before a final decision was made. Mrs Field wrote to Mr Snell on 25 September 2007 advising that this interview would be carried out and the notes would be provided to give Mr Snell an opportunity to comment. The notes of the interview were provided under cover of a letter of 18 October 2007 by David Traylor, a solicitor who was on secondment from Minter Ellison Solicitors as a legal advisor to the Corrections's human resources department.

9 Mr Snell responded on 21 November 2007 claiming that the interview corroborated the defendants' accounts of the incident. The letter asserted that the time the investigation had taken had now become an employment issue. Mr Snell gave evidence to the Court that he had contact with Mr Traylor on a number of occasions around that time. He claimed that during those conversations he had advised Mr Traylor that there were personal grievance issues regarding the investigation process and that if a termination occurred this would be unjustified given the process followed, quite apart from the substantive issues involved. Mr Traylor in evidence did not agree that Mr Snell had clarified matters relating to personal grievances to that extent. I prefer Mr Traylor's evidence on this point. If the issues had been addressed as clearly as Mr Snell recalled Mr Traylor is most likely to have made a note of what Mr Snell had said and have advised Corrections. It is also likely Mr Snell would have recorded his advice in some manner. No such notes were produced.

10 On 6 September 2007 Mr Hanlon received a letter from Mr Waitai stating that he wanted CANZ to officially lodge a grievance against Corrections, because of the delays. No grievances were lodged by CANZ because Mr Hanlon decided to wait for the final outcome of the investigation.

11 On the morning of Thursday 20 December 2007, Mr Hanlon received a phone call from Corrections requesting the defendants and their representatives attend a meeting in Wellington the following day at which the outcome of the investigation would be announced. Mr Hanlon had difficulties in contacting the defendants and decided to instruct Mr Snell to attend the meeting. He rang Mr Snell who told him that he was unable to attend the meeting as he was going to be out of the office on leave from that day and was not going to be available until 14 January 2008. Mr Hanlon sought to have the meeting delayed until Mr Snell's return and protested to Corrections about the short notice. The response from Corrections was that the meetings were going to go ahead on the Friday and the officers would be asked to bring a support person.

12 The meetings went ahead but neither Corrections nor Mr Hanlon could make contact with Mr Kennedy. The meeting announced that the defendants were being dismissed for serious misconduct with immediate effect. From the exchange of emails the previous day it appeared clear that this was going to be Correction's intention on 21 December 2007 and that the meeting was solely for the purpose of carrying out the dismissals.

13 When Mr Snell returned to work on 14 January 2008 he found that all the defendants had been dismissed although only two were present at the dismissal meeting. Mr Kennedy had been sent a letter dismissing him on 21 December. Mr Snell deposed in his affidavit:

12. … I spoke with Mr Hanlon and, from discussions with him, believed that a personal grievance had been raised by him regarding the termination and investigation of the three employees. Mr Hanlon clearly advised me that the employees wanted to proceed with the anticipated personal grievance claims and that their personal grievance claims should go to mediation as soon as possible.

Clearly it was at this point that a misunderstanding between Mr Hanlon and myself occurred with me believing that the Personal Grievances had been raised already following immediately on from termination and in my absence.

14 Mr Hanlon's affidavit evidence on this point was as follows:

• 15. It appears that from that point Mr Snell and I may have been at cross purposes to an extent. When CANZ takes a personal grievance on behalf of one of its members it is our practi[c]e to set out that grievance formally in a letter, explaining the background to the grievance, what the grievance is and what remedies are sought. Sometimes however we leave it to our lawyer (often Mr Snell) to do this and on this occasion I was under the impression that Mr Snell would send a formal notification of the grievance.

• 16. I certainly understood from Mr Snell that he had advised the Department that Messrs Waitai, Ese and Kennedy each had a personal grievance with regards to...