The Chief Executive of the Department of Corrections v Aaron Waitai and Ors
 NZEmpC 164
IN THE EMPLOYMENT COURT WELLINGTON
In the Matter of a de novo challenge to a determination of the Employment Relations Authority
Karen Spackman, counsel for the plaintiff
G W Calver, counsel for Aaron Waitai
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).
Held: The test for whether or not a personal grievance had been lodged was what the employer reasonably could have taken from the words used. The communications received by Corrections after the dismissals from H and S all appeared to have proceeded on the misunderstanding that the grievances had been raised by some other formal communication. In order to comply with s114(2) ERA, the communications must, objectively viewed, have involved reasonable steps taken by the employee to make the employer aware that the employee alleged a personal grievance that the employee wanted the employer to address, with sufficient specification to enable the employer to address it.
The actual communications from H and S to the Mediation Service were not intended to raise the grievances. They all proceeded on the mistaken basis that the grievances had already been formally raised. Corrections were not made sufficiently aware of the grievances and the remedies sought, for Corrections to have been able to respond. Corrections, from its prior experiences with CANZ, would have expected a formal communication to have been sent. Discussion of dismissals and the existence of a personal grievance claim was not the same as raising a grievance. The grievances were not raised within the 90 day time limit.
In order for leave to be given to file a grievance out of time, both elements of s115(b) ERA (further provision regarding exceptional circumstances under s114) had to be met. It was clear that H had been acting as the defendant's union representative and that he had engaged S to act for CANZ. There had been a failure in communication between S and H. They had unreasonably failed to ensure that the grievances were raised within the required time by checking to ensure that the standard formal letter had been sent; instead both assumed that the other had done it. That satisfied the second element of s115(b) ERA (agent unreasonably failed to ensure that the grievance was raised within the required time).
However, the defendants also had to satisfy the first element of s115(b) (ERA) (employee made reasonable arrangements to have the grievance raised on his or her behalf by an agent of the employee). Communications by the defendants stated that while they wished to challenge the dismissal they did not say that they wanted H to raise a personal grievance nor did they enquire as to whether they had grounds for such a claim, nor had they referred to compensation or reinstatement. It was not sufficient to have given a general and broad instruction to take steps to pursue the grievance.
Application for leave to file out of time was dismissed.
JUDGMENT OF Judge B S Travis
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.
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 SeniorCorrections Officer on 31 August 2001. The second defendant, David Kennedy, and the third defendant, Motusaga Ese, were employed by the plaintiff as Corrections Officers.
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.
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.
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.
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.
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.
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.
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.
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...
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