Workforce Development Ltd v Lynda Jean Hill
| Jurisdiction | New Zealand |
| Judge | CHRISTINA INGLIS |
| Judgment Date | 19 September 2014 |
| Court | Employment Court |
| Docket Number | WRC 17/13 |
| Date | 19 September 2014 |
In The Matter Of a challenge to the determination of the Employment Relations Authority
In The Matter Of a challenge to the determination of the Employment Relations Authority
[2014] NZEmpC 174
Judge Inglis
WRC 17/13
WRC 19/13
IN THE EMPLOYMENT COURT WELLINGTON
Challenge to an Employment Authority determination that the defendant had been unjustifiably disadvantaged and dismissed — employee was engaged as a tutor — employer provided literacy and numeracy tuition to prison inmates under a contract with Department of Corrections — term of employment agreement and prison policy that tutors were not to communicate with inmates — prison could at its discretion withdraw access to prison — employee sent postcard to inmate — Corrections withdrew access following investigation and meeting with employer and employee — employer dismissed employee as she could no longer access the prison to undertake her duties — whether employer had been obliged to advocate on employee's behalf during the Corrections investigation — whether employer had failed in its obligations by omitting to advise employee to obtain legal advice and representation — whether employer had been obliged to seek review of or appeal Corrections' decision — whether s103A Employment Relations Act 2000 (ERA) (actions were what fair and reasonable employer could have done) did not apply as the employment agreement had been frustrated.
S Webster, counsel and D McLeod, advocate for Workforce Development Limited
P O'Sullivan, advocate for Lynda Hill
JUDGMENT OF JUDGE CHRISTINA INGLIS
Workforce Development Ltd (WDL) is a company specialising in adult literacy training. It is party to a contract with the Department of Corrections (Corrections). Under the contract WDL provides literacy and numeracy tuition to serving prisoners. This is done by tutors, employed by WDL, one of whom was the defendant – Mrs Hill.
Not surprisingly Corrections takes a cautious approach to security issues. This extends to the way in which prison staff and others working within the prison environment engage with prisoners. Prison Managers are vested with wide discretionary powers to authorise – and decline – access to the prison. Tight controls are in place for restricting what can come into and go out of prisons, for obvious reasons. Under the contract with WDL, Corrections in its sole discretion could withdraw access for tutors, on either an interim or permanent basis.
Around September 2011 prison management became aware that Mrs Hill had sent a postcard to a serving prisoner while she had been away overseas on holiday. It also appeared that this was not an isolated event and that Mrs Hill had sent correspondence to the same prisoner while she had been a tutor at Whanganui prison. While Mrs Hill considered this to be an entirely innocent gesture, designed to encourage the prisoner's learning, prison management did not take such a benign approach.
Ms Bernard, Manager Contracts and Services at Hawkes Bay prison at the time, considered that the communications raised serious safety concerns, including in relation to boundary issues between Mrs Hill and the prisoner. Ms Bernard advised the manager of WDL, Ms Greenhalgh, of her concerns and told her that consideration was being given to suspending Mrs Hill from the prison site on an interim basis pending further investigation. This is what subsequently occurred.
Suspended access meant that Mrs Hill was unable to undertake her tutoring tasks. WDL placed Mrs Hill on suspension and advised her that, depending on the results of Correction's investigation and decision-making, her employment might be in peril. This advice was founded on a term of her employment agreement, which provided that:
It is further agreed that at any time, should the Department of Corrections consider you to be in breach of any of their rules or policies, and as a consequence deem this breach by you to be serious, they may withdraw your access to one or all their sites.
In this instance, and should the Department of Corrections decision become final, and there are no other positions for you to fulfil, [WDL] may terminate this Employment Agreement through the notice provisions.
I pause to note that Mrs Hill gave evidence in chief that she had not read the employment agreement, but conceded in cross-examination that she would have read it prior to initialling each of its pages. The agreement made it plain that:
No Employee shall have any communication with an inmate unless in relation to the programme … Employees must retain professional distance from inmates and not form friendships with inmates…
The agreement included a job description which set out a number of responsibilities and acknowledgements, including that Mrs Hill:
Read, understand and implement all relevant [Prison Service] and Company Handbooks, Health … Safety policy requirements for working in and how to behave in prisons.
The employment agreement also stated that:
The responsibility to complete the induction and orientation process, along with attendance at relevant courses and completion [of] required documents is exclusively yours.
Despite acknowledging these obligations Mrs Hill did not seek out, or read, the handbooks and other documentation referred to.
Clause 2 of the contract between WDL and Corrections set out the process that would be followed by Corrections in deciding whether to withdraw access to a WDL staff member. The contract provided that Corrections could “at its sole discretion” and “for any justifiable reason” withdraw prison access for any of WDL's staff members. Within five business days of initial notification of withdrawal of access, Corrections was obliged to provide WDL with written notification as to the circumstances of the decision. Within a further ten business days, Corrections was to convene a meeting with representatives of WDL and the affected staff member to enable all parties concerned to explain the reasons for the situation. Corrections was required to consider any explanations put forward, and within ten working days of the meeting advise the parties of its final decision in writing.
Mrs Hill was not privy to the contract between WDL and Corrections. However, she was aware from the terms of her employment agreement that Corrections had the power to remove her access to the prison and if that occurred, and there was no other position for her within WDL, she was liable to have her employment terminated.
Mr Dack, Acting Security Manager for Corrections, undertook an investigation (the Dack investigation). He met with Mrs Hill as part of his inquiries. His conclusions were set out in an email dated 15 September 2011, including that:
At the end of August 2011 a postcard was intercepted at Hawkes Bay Prison. The postcard was addressed to [the prisoner] and was sent by a tutor currently employed by Work Force and contracted to deliver educational courses at Wanganui Prison.
The contents of the post card indicate this is not the first card sent as it mentions a previous one sent the year before. [Mrs Hill] also requests that [the prisoner] write back but send the letter through the programmes facility at Wanganui Prison. The request just asks to tell everyone how [the prisoner] is doing. The rest of the postcard is general tourist chatter and of no significance.
Ms Hill was genuinely apologetic and understands she has crossed an ethical boundary.
She stated that the first postcard was sent whilst she was not employed or contracted by the department to deliver courses.
She admits that the second postcard was sent whilst employed/contracted by the department and now realises it was wrong.
…
Ms Hill has only received an Induction at Manawatu Prison, although I think she has had specific induction through programmes she has not had a specific site induction here and that should be rectified immediately. She has not received any “Staying Safe” or “Getting Got” training and this should be remedied as soon as possible.
I find that this has been an innocent mistake and that Ms Hill has been honest and open about what has happened. There is little to substantiate any wrong doing.
Ms Hill has been advised of her professional boundaries and has been left with no doubt that if a further occurrence comes to light or is discovered it will be a direct breach of her contract.
I also suggest that she attends the next “Getting Got” presentation and that all other tutors and programme providers also attend.
Mrs Hill was copied into the email but says she never received it. That may be because it was sent to her via the Corrections intranet. As at the date of the email Mrs Hill had been suspended from the site. Mrs Greenhalgh did not receive a copy of Mr Dack's email at the time either.
While it is apparent that Mr Dack considered the incident to be an innocent mistake that could adequately be addressed by further training, he was not the Prison Manager and did not have the power to make decisions as to what, if any, action might be taken in relation to the postcard incident. Ms Bernard, who had sought the investigation, was copied into Mr Dack's report. Notwithstanding the views that Mr Dack had expressed she regarded the incident as a very serious one.
Mrs Greenhalgh was also concerned about the incident, including the potential safety issues it might give rise to for Mrs Hill. She discussed this with Mrs Hill. Mrs Greenhalgh was keen to ensure that the process set out in the contract between WDL and Corrections was followed. She immediately wrote to Corrections on 16 September 2011, noting that the Dack investigation had been conducted without her prior knowledge. She made it clear that suspension...
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