IN THE EMPLOYMENT COURT CHRISTCHURCH [2014] NZEmpC 60 CRC 22/13. PETER JAMES WALKER Plaintiff

Transcription

1 IN THE EMPLOYMENT COURT CHRISTCHURCH IN THE MATTER OF BETWEEN AND [2014] NZEmpC 60 CRC 22/13 a challenge to a determination of the Employment Relations Authority PETER JAMES WALKER Plaintiff FIRTH INDUSTRIES a division of FLETCHER CONCRETE & INFRASTRUCTURE LIMTED Defendant Hearing: 16, 17 & 18 September 2013 Heard at Dunedin Appearances: BC Nevell, counsel for the plaintiff P A Swarbrick, counsel for the defendant Judgment: 30 April 2014 JUDGMENT OF JUDGE A A COUCH [1] The plaintiff, Mr Walker, was employed by the defendant (Firth) at its Dunedin concrete making plant from May 2003 until his summary dismissal on 24 January [2] Mr Walker regarded his dismissal as unjustifiable and pursued a personal grievance to that effect before the Employment Relations Authority. The Authority dismissed his claim 1 and awarded costs against him. 2 Mr Walker challenged the whole of the Authority s determination and the matter proceeded before the Court in a hearing de novo. Mr Walker seeks reinstatement and compensation for distress. 1 [2013] NZERA Christchurch [2013] NZERA Christchurch 148. WALKER v FIRTH INDUSTRIES a division of FLETCHER CONCRETE & INFRASTRUCTURE LIMTED NZEmpC CHRISTCHURCH [2014] NZEmpC 60 [30 April 2014]

2 Background and sequence of events [3] Firth operates concrete making plants throughout New Zealand including, at the time in question, 23 in the South Island. One of these was located in Dunedin. Firth is one of a dozen or so divisions of Fletcher Building Ltd which was described as one of the largest New Zealand domiciled international companies. [4] Firth s Dunedin plant was relatively small. The staff comprised four drivers and four other staff. The manager was John Ritchie. Mr Ritchie reported to Aaron Charteris, the South Canterbury/Coastal Otago Area Manager for Firth. He was based in Dunedin. Mr Charteris reported to Michelle Creagh, the Chief Operating Officer Southern for Firth. She was based in Christchurch. Ms Creagh, in turn, reported to David Peterson, the General Manager of Firth. [5] In addition to managing the overall operation at the Dunedin plant, Mr Ritchie did the batching. This was the process of determining and controlling the amount of each of the materials mixed together to make concrete. There were a number of different types of concrete made at the plant, so that the operator was required to mix the materials in differing ratios as well as ensuring the correct volume of concrete was produced for each order. Once mixed, the concrete was delivered in trucks operated by Firth. [6] Within Firth, the term batching described a role which comprised not just the mixing of the concrete but also other duties in the dispatch office of the plant. These duties included organising the drivers, communications with customers and ensuring the safe operation of the plant. The term batching was used in this broader sense by witnesses and is used in that broader sense in this decision. [7] There were four drivers employed at the Dunedin plant. One of those was Mr Walker. In addition to being an experienced driver, Mr Walker had also received some training in batching and relieved Mr Ritchie from time to time. This was

3 consistent with the applicable collective agreement 3 which provided A suitably qualified and competent driver may be temporarily assigned to batch. 4 [8] Mr Walker s training and experience in batching had been at an older plant in Dunedin where the measurement of materials was done manually. In September 2010, the Dunedin operation moved to a new plant at Green Island. This incorporated a computer controlled batching system. [9] In August 2010, Mr Ritchie suffered a back injury which rendered him unable to work. Mr Charteris then took over Mr Ritchie s role doing the batching and managing the Dunedin Plant. [10] Firth had secured a contract to provide large volumes of concrete for the construction of a wind farm at Mahinerangi, about 50 kilometres west of Dunedin. Mr Charteris needed to be there to batch concrete being prepared on site. That work was due to start in November In Early October 2010, it was still uncertain when Mr Ritchie would be able to return to work. To cover the situation if Mr Ritchie was not back at work in time, Mr Charteris asked Mr Walker to assume Mr Ritchie s role at the Dunedin plant if necessary while he was at the wind farm site. Mr Walker agreed to do so until the Mahinerangi project was completed or Mr Ritchie returned to work. [11] Nothing more was said about this arrangement until Mr Walker returned from a week s holiday at the end of October The wind farm project was about to get underway and, as Mr Ritchie was still unable to work, Mr Charteris asked Mr Walker to take up the management role immediately. As described earlier, assuming Mr Ritchie s role required Mr Walker not only to batch the concrete but also to organise the drivers, to be the point of contact with customers and to have responsibility for the day to day operation of the plant. [12] An immediate issue was that Mr Walker had no experience of the computer controlled batching system. Mr Charteris gave Mr Walker brief instructions. 5 A 3 The Firth Canterbury/Dunedin Certified Concrete collective agreement dated July At cl 3.3(a). 5 Said to be 20 minutes by Mr Walker and a few hours by Mr Charteris. This may be compared

4 batcher from Oamaru was also on site for a couple of hours but he had little or no experience with the new system. Mr Charteris told Mr Walker that, if there were any problems, to call him on his cell phone. [13] During the following weeks, Mr Walker did the job he was asked to do but had to contact Mr Charteris on a number of occasions for help and advice. Mr Walker also made some mistakes in operating the new batching system which resulted in customer complaints or negative feedback. As acting plant manager, Mr Walker was responsible for the safety of contractors working on site. This was a particularly sensitive issue as there had been a death at another Firth site in 2008 which had been used by Firth to stress the importance of safety on site. [14] In mid-november 2010, Mr Ritchie began a graduated return to work. Initially he worked 4 hours per day. As a result, Mr Walker s time was split between the dispatch office role and driving. After his return to the job, Mr Ritchie made a number of mistakes which led to complaints which Mr Walker received. Mr Walker had to reschedule deliveries to correct some of these problems and this led to issues with both customers and drivers. [15] In the last week of November 2010, Mr Walker arranged for another driver to do the batching work on Saturday 27 November 2010 because he was tired. Mr Charteris agreed to this. [16] The following week, Mr Walker made an error in the batching of a particular order which resulted in an angry complaint from the customer. The matter was referred to Mr Charteris who settled it by paying compensation to the customer. [17] The wind farm project work finished in early December This enabled Mr Charteris to return to his normal role but he did not resume doing batching at the Dunedin plant. Mr Walker was required to continue doing the hours that Mr Ritchie was not doing. with the three days training it was agreed Mr Charteris received.

5 [18] On 14, 16 and 17 December 2010, it appears there were discussions involving Mr Walker and various members of Firth management. Mr Walker s evidence was that he told Mr Charteris and others that he was suffering from stress as a result of doing the batching and fielding complaints about Mr Ritchie s work. That was largely denied by Mr Charteris. I return to this conflict of evidence later. [19] It was common ground that, on Friday 17 December 2010, there was a discussion involving Mr Walker, Mr Charteris and Mark Collin, Firth s South Island health and safety advisor at which Mr Walker said that he was not sleeping well and was tired and run down. Mr Collins advised him to see a doctor and said that Firth would find someone else to do the batching. Mr Walker replied that, if he did not sleep well over the weekend, he might well do that. [20] Following his return from Mahinerangi, Mr Charteris had been urging Mr Ritchie to get a clearance to work full time. Mr Ritchie was optimistic he was fit to return to his normal duties and it was understood that he was making an appointment to see his doctor on Friday 17 December 2010 to get clearance to do so. This did not happen and, on Monday 20 December 2010, Mr Ritchie asked Mr Walker to cover for him while he went to see the doctor. Late that afternoon, Mr Ritchie rang Mr Walker to say that he had only been cleared to work 6 hours per day. [21] On 20 December 2010, there was a meeting at the plant to discuss a longstanding issue regarding the position of mirrors on the trucks. Mr Walker was the site delegate for the New Zealand Amalgamated Engineering, Printing & Manufacturing Union (the union) and had been pursuing this issue for some time. One of the people present at the meeting was Vicki Donaghue, a member of the human resources department of Firth who was based at the Dunedin Plant doing training and staff development work. In the course of the meeting, Ms Donaghue referred to Mr Walker as my nigger. This was apparently said in jest but, as a Maori, Mr Walker took offence and complained to Mr Charteris about the remark. Ms Donaghue apologised to Mr Walker later in the day but questioned his motives at the same time.

6 [22] On Tuesday 21 December 2010, Mr Walker started work driving at 5.15 am. Mr Charteris arranged for Mr Ritchie to start work at 8.00 am. At about noon, Mr Walker was working with a front end loader in the yard at the plant. Mr Charteris approached him and said that contractors would be on site later that afternoon. When Mr Walker asked why he needed to know that, Mr Charteris told Mr Walker that he would be doing the batching that afternoon. Mr Walker replied that he would not do it. [23] Key aspects of what followed were the subject of a direct conflict of evidence between Mr Walker and Mr Charteris. It was common ground that, after refusing to do the batching work that afternoon, Mr Walker turned and began walking away from Mr Charteris. It was also agreed that there was a heated exchange of words between the two men. I return to the detailed evidence of these events later. [24] Immediately after these events in the yard, Mr Walker went to see Mr Ritchie. He referred to what had happened and told Mr Ritchie he was going to see his doctor and the union. Mr Ritchie said that s fine. Shortly afterwards, while Mr Walker was in the staff room changing to leave, Mr Charteris approached him and there was a further conversation between them. Mr Walker said he was going to see his doctor because of stress. [25] That afternoon, Mr Charteris had a letter delivered to Mr Walker s home requiring him attend a meeting at 2.30 pm the following afternoon. The text of the letter was: Firth Code of Conduct I am writing to you regarding your behaviour this morning that followed my request to you that you undertake batching duties after lunch today. As you know, John Ritchie is on reduced hours due to a back condition, and I have asked you to assist us with batching cover, as set out in your position description. When I asked you to undertake batching duties today, you became agitated and aggressive to the point that I felt intimidated. This was due to your aggressive physical behaviour (clenched fists, "eye-balling" me uncomfortably close to my face, and shouting into my face) and the words and tone you used when refusing to undertake the batching duties.

7 You said you would not do the work, upon which I suggested you might like to discuss this with your Union representative as I felt this was a serious matter. You then shouted that you were going to the Union now" and then would go to your doctor to be signed off with stress. You left without having further discussed this with me or gaining my permission to leave. Peter, I have given this considerable thought and it seems to me that your behaviour could be objectively viewed as serious misconduct as defined under the Firth Code of Conduct. The specific points I consider you to have breached, and which may constitute serious misconduct, are. Code of Conduct (2): k) Engaging in any conduct which causes the Company to lose trust and confidence in you as an employee. l) Refusing to obey an instruction from a superior or refusing to perform assigned work or walking off the job without the permission of the Manager. m)... threatening violence against another person on Company premises. n) Assault, abuse or threats of violence against...an employee. I wish you to attend a meeting with me, at the Firth offices, on Wednesday, 22 December at 2.30p.m.so we can fully discuss this. Please be aware that there is a possibility of disciplinary action up to and including dismissal. You are, of course, welcome to bring a support person with you, I recommend that you do so. [26] In the meantime, Mr Walker sought advice and representation from his union and made an appointment to see his doctor the following day. [27] At the meeting on Wednesday 22 December 2010, Mr Walker was represented by Mike Kirwood, a union organiser. The meeting was conducted by Mr Charteris and Ms Donaghue. At an early stage of the meeting, Mr Kirwood gave Mr Charteris a certificate from Mr Walker s doctor saying that Mr Walker was unfit for work from 21 December 2010 as a result of undue stress and would be fit to resume work on 10 January There followed a relatively detailed discussion about the events of the previous day based on Mr Charteris perception of them. At the end of the meeting, Mr Walker was required to attend a further meeting the following day. [28] On Thursday 23 December 2010, Mr Kirwood was unavailable so Mr Walker was represented by another union organiser, Juanita Willems. At this meeting, Mr Walker was asked essentially the same questions that had been put to him the

8 previous day and was reluctant to answer them again. At the end of this meeting, Mr Charteris and Ms Donaghue said that any decision would have to wait until the new year because Firth s senior human resources staff were already on leave. It was arranged that a further meeting would be held on 17 January During this meeting, Mr Walker was unwell and was obviously distressed immediately afterwards. [29] On 16 January 2011, Mr Walker injured his shoulder while working at home. He made an appointment to see his doctor the following day and, as a result, the meeting scheduled for 17 January 2011 was postponed until Monday 24 January At that meeting, Mr Charteris reiterated the issues as he saw them and invited Mr Walker to say anything else he wanted. Mr Walker described another aspect of the events of 21 December 2010 but Ms Donaghue immediately said that she did not believe him because he had not mentioned it previously. At the end of the meeting, Mr Charteris and Ms Donaghue met privately then told Mr Walker that he was dismissed. [30] Firth had a policy known as the one over one approval policy. This required certain significant decisions by a manager to be approved by that person s manager. Although the policy was not specifically expressed to apply to disciplinary processes, Mr Charteris felt obliged to apply it with respect to Mr Walker. He involved his immediate manager, Ms Creagh, in the process. She, in turn, involved her manager, Mr Peterson and Firth s national organisational and development manager, Dan Mulveagh. During the disciplinary process, there were several discussions between Mr Charteris and Ms Creagh and between Ms Donaghue and Mr Mulveagh. [31] Mr Walker s dismissal was confirmed in a letter sent to him by Mr Charteris the following day, 24 January This repeated the allegations of misconduct, traversed the history of meetings and then gave the following reasons for dismissal: Reasons for Termination: Given the content of our meetings, we are still of the view that you have breached the Firth Code of Conduct by declining to follow Aaron's instructions, and by acting in an aggressive and abusive manner towards another employee (Aaron).

9 We understand, from Juanita, that you feel there are extenuating circumstances for your behaviour in that you believe Aaron egged you on" and that Firth did not manage your stress properly. In our meetings, the suggestion that Aaron egged you on" was not made so it is somewhat surprising now. Indeed, at the meeting with Mike (EPMU), Mike stated that both your and Aaron's recollection of the incident were very similar which led credence, in his mind, to them, and they did not include egging on", In regard to your belief regarding stress, this was discussed at our initial meeting. Aaron was unaware that you felt you were stressed beyond the normal pressures of work and the time of year. You discussed that you had spoken to Mark Collins (the Regional H&S Advisor) about feeling stressed, that he had suggested you see a doctor, and that Firth could arrange this for you, if you wished. You said that you had told Mark that the weekend would probably make things get better" and that you hadn't raised this again. You also told Mark that the stress was not work-related. Given this background, we are still of the belief that the Code of Conduct has been breached by "serious misconduct" as set out above. We were initially undecided as to whether the incidents constituted, conduct that has caused Firth to lose trust and confidence in you as an employee" (from the Firth Code of Conduct) and we acknowledge the gravity of the situation. However, we have also considered your statements. apparent attitude and behaviour since the incident; including your derogatory comments about Aaron, apparent lack of regret or admittance of wrongdoing, and somewhat cavalier attitude to scheduled meetings and process.. We believe that this subsequent behaviour has compounded the original issue and, taken as a whole, your conduct has been such as to constitute serious misconduct so that Firth has lost trust and confidence in you. This is why Firth has terminated your employment. [32] Since his dismissal and up to the time of the hearing, Mr Walker was unable to work as a result of the shoulder injury he suffered on 16 January 2011 and was receiving earnings related compensation from ACC. Test of justification [33] Mr Walker s claim is based on the proposition that his dismissal was unjustifiable. The statutory test of justification is set out in s 103A of the Employment Relations Act 2000 (the Act). This test is to be applied in the form it took at the time the dismissal occurred: 6 6 A revised version of s 103A was substituted in April 2011.

10 103A Test of justification For the purposes of section 103(1)(a) and (b), the question of whether a dismissal or an action was justifiable must be determined, on an objective basis, by considering whether the employer s actions, and how the employer acted, were what a fair and reasonable employer would have done in all the circumstances at the time the dismissal or action occurred. Case for Mr Walker [34] The case for Mr Walker was advanced on numerous grounds, both procedural and substantive. The procedural issues raised were: (a) (b) (c) (d) (e) (f) (g) (h) (i) Pre-determination. Bias. The lack of a cooling off period between the events of 21 December 2010 and the disciplinary meetings. A failure to properly investigate the contested issues of fact. A failure to take the explanation of stress into account. No opportunity to be heard by the final decision maker. The final decision maker not being aware of all relevant information. The concerns relied on for dismissal were not all being put to Mr Walker. A failure to consider alternatives to dismissal. [35] The substantive issue relied on was that Mr Walker said that he refused to assume Mr Ritchie s role on 21 December 2010 because he was stressed by the work to the point where it may have been unsafe. If that was accepted, it was submitted his conduct should have been regarded as a health and safety issue rather than as a disciplinary issue. Case for Firth [36] The case for Firth was that, while the disciplinary process could have been better, it was fair overall and Mr Walker s dismissal was substantively justified.

11 [37] As to the substantive justification, it was submitted that Mr Charteris instruction to Mr Walker on 21 December 2010 was lawful and reasonable. Batching was work Mr Walker was qualified and experienced to do and which was expressly provided for in the applicable collective agreement. His refusal to do the work was clear insubordination. [38] It was submitted that Mr Walker had ample opportunity during the disciplinary process to raise the explanation that he refused to batch because of stress but that he failed to do so clearly. [39] Although there was conflicting evidence about the events on 21 December 2010, it was open to Mr Charteris and Ms Donaghue to conclude that Mr Walker was the aggressor. Having concluded that he was, his conduct was a breach of Firth s code of conduct. [40] As to procedure, it was submitted that Mr Walker was made aware of the concerns about his conduct and given ample opportunity to respond to them. It was also submitted that Firth was entitled to rely on indications from the union organisers who attended the disciplinary meetings that they were comfortable with the process. [41] In response to the allegation of bias, it was submitted that any conflict of interest Mr Charteris may have had was balanced by Ms Donaghue s involvement and by Firth s one over one policy which resulted in the involvement of Ms Creagh and Mr Mulveagh. Discussion and decision [42] In applying s 103A of the Act, the Court must have regard to all of the circumstances in which the decision to dismiss Mr Walker was made. What is in issue is whether, on an objective basis, Firth s actions were what a fair and reasonable employer would have done. In order to decide that overall issue, it is necessary and appropriate to examine each of the issues raised by the parties. I accept Ms Swarbrick s submission, however, that this should not involve minute and pedantic scrutiny.

12 Mr Charteris role [43] Mr Nevell submitted that Mr Charteris was biased in his decision to dismiss Mr Walker. As he put it Aaron Charteris was the complainant, the witness for the company, the main investigator of contested facts or explanations, and was the primary decision maker. [44] The first observation which must be made about this submission is that it emerged in the evidence that Mr Charteris was not the final decision maker. That was Ms Creagh. Mr Charteris acknowledged in his evidence in chief and repeatedly in answer to questions in cross-examination that it was Firth s view at the time that he should not be the decision maker. Mr Charteris did, however, have a critical role in conducting the disciplinary meetings, determining the facts and making a recommendation to Ms Creagh. [45] There is no hard and fast rule that a person involved in making a disciplinary decision may not rely on his or her own observations of the conduct in question. Thus it cannot be said that, in every case in which a manager or employer is both a witness and the decision maker, the process will be unfair. What must be shown is that, in all the circumstances, the decision maker s involvement in the events in question was such that an objective observer would conclude that he or she had not brought an unbiased mind to the decision to dismiss. 7 [46] In this case, the key events were those which occurred in the exchange between Mr Walker and Mr Charteris in the yard of the plant on 21 December Mr Charteris was not just an observer. He was vitally involved. His evidence was not only of what he saw and heard but also how he felt. In his letter to Mr Walker later that day, he said: When I asked you to undertake batching duties today, you became agitated and aggressive to the point that I felt intimidated. This was due to your aggressive physical behaviour (clenched fists, "eye-balling" me 7 On this point, I adopt the words of Judge Inglis in Allen v C3 [2012] NZEmpC 124 at [27].

13 uncomfortably close to my face, and shouting into my face) and the words and tone you used when refusing to undertake the batching duties. [47] In the subsequent meetings with Mr Walker, it was clear that Mr Walker did not accept that he had been the aggressor in the confrontation which occurred. This placed Mr Charteris in the position of having to decide whether he accepted what Mr Walker said in preference to his own version of events which he had already recorded in that initial letter. In such circumstances, an objective observer could not conclude that Mr Charteris brought an unbiased mind to the process. [48] This was borne out in the evidence given before the Court. When cross examined about the events on 21 December 2010, Mr Charteris conceded that it was his number one priority to get Mr Walker to do the batching later that day and that, when Mr Walker refused, he was frustrated and had confronted Mr Walker in a reasonably aggressive way in order to persuade him to change his mind. When Mr Walker turned away, Mr Charteris went after him and said if push comes to shove, I ll push harder than you. 8 Mr Charteris said that he could not remember what else was said after that but accepted that Mr Walker never threatened him verbally. [49] There was no reason why another manager from Firth could not have conducted the investigation and disciplinary process. Firth is a large organisation with ample resources. The obvious person would have been Ms Creagh who agreed in her evidence in chief that there was no particular reason why she did not go to Dunedin to handle the matter. [50] The significance of this issue was reinforced by the applicable collective agreement which provided: ) Investigation a) Before any decision to discipline is made a full and unbiased investigation should be undertaken. This should include a full explanation by the employee and any witnesses. 8 This was Mr Charteris own evidence of what he said. Mr Walker s evidence was that he said I m sick of you always pushing me, I ll push you and see how you like it, and when push comes to shove I can shove harder than you can shove me.

14 [51] It was submitted that any potential for bias by Mr Charteris was negated by Ms Donaghue s involvement in the meetings. I do not accept that was so. Ms Creagh confirmed that Mr Charteris was to have the leading role in conducting the meetings with Mr Walker and that Ms Donaghue had a supporting role. In the course of the disciplinary process, Mr Charteris was never questioned about the account of events recorded in his letter of 21 December Rather, that was used as a basis for questioning Mr Walker. It also appeared from the evidence that Ms Donaghue herself was not kindly disposed towards Mr Walker. She had questioned the sincerity of his taking offence at her nigger remark on 20 December 2010 and appears to have been quick to dismiss Mr Walker s account of events. The obvious example of this was her immediate rejection of what Mr Walker said at the meeting on 24 January 2011 because he had not mentioned it at an earlier meeting. Firth s one over one approval policy [52] Evidence about the one over one approval policy was largely given by Ms Creagh. Her explanation of it in her evidence in chief was: 11. The logic behind the policy is that a senior manager, who is not caught up in the emotion of the moment, gets the chance to objectively consider the facts and then make a reasoned logical decision. And the requirement to involve HR also means we get the chance to make sure the process is a good and fair one. 12. Obviously, the one-over-one manager can't make findings on disputed facts, if he/she isn't present in the disciplinary meetings. That is why we always ensure at least one of the decision makers is present at all the meetings. However, the key requirement with the One-over-one Policy is that no one gets dismissed unless there has been that objective overview by a manager and by HR, and they must sign off on any final decision. [53] The way in which this policy was put into practice in Mr Walker s case became apparent from Ms Creagh s answers to questions in cross-examination and from the Court. Ms Creagh confirmed that she was the final decision maker. Mr Charteris and Ms Donaghue told her what they thought, Ms Creagh made the decision and then checked with Mr Peterson that he was comfortable with it. [54] There was an obvious and fatal flaw in this process. As Ms Creagh said in her evidence in chief and repeatedly confirmed in her oral evidence, she was

15 dependent on Mr Charteris and Ms Donaghue telling her what the relevant facts were. Quite properly, she conceded that, if the information provided to her was not accurate, her decision would be incorrect. She also agreed that, if those providing information to her were biased in their findings of fact, this would taint her decision. [55] In answer to questions in cross-examination, Ms Creagh conceded that she had not been told many key facts. She was unaware of any suggestion that Mr Walker had been experiencing stress when doing batching and was not told about the medical certificate presented on 22 December 2010 referring to stress. Indeed, she said she was unaware of any health or safety issues being raised. Ms Creagh said she was also unaware of problems arising out of mistakes made by Mr Ritchie and that Mr Walker had said at the meeting on 24 January 2011 that he would be prepared to do batching provided it was not following Mr Ritchie. She said that her understanding of events on 21 December 2010 was that Mr Walker agreed with Mr Charteris account of events. This included Mr Walker being aggressive by charging at Mr Charteris and getting in his face. Mr Charteris conceded in evidence that this was what he told Ms Creagh and that it was wrong. He conceded that Mr Walker never agreed with many aspects of his version of events and that he was the one who had made the first aggressive move by charging towards Mr Walker and shouting at him. [56] The significance of these factual distortions was clearly underlined by Ms Creagh in her oral evidence. She said that, had she been aware that stress or any other health and safety issue had been raised by Mr Walker, she would have viewed the whole matter differently. She would have insisted that such matters be investigated fully and, if there was substance to them, the matter would have been treated as a health and safety issue rather than as a disciplinary issue. She also said that, had she been aware that Mr Walker was willing to batch provided he was not having to cope with problems caused by Mr Ritchie, that would have had a considerable effect on her view of the matter.

16 Extent of investigation [57] Mr Nevell submitted that key issues were not properly investigated in the disciplinary process. There is weight in this submission. The most important omission was Firth s failure to properly investigate the reason for Mr Walker s refusal to batch on 21 December This failure was sustained and repeated. [58] When Mr Walker initially refused to do the batching on 21 December 2010, the obvious question for Mr Charteris to ask was why. His evidence was that Mr Walker did not volunteer any reason yet he conceded that he still did not ask the question. Instead, he became aggressive towards Mr Walker and made veiled threats. [59] Mr Charteris agreed that Mr Walker s conduct on 21 December 2010 was entirely out of character. He had never refused to batch before and his reaction to Mr Charteris aggressive insistence was perceived by Mr Charteris as irrational and angry. [60] When Mr Charteris caught up with Mr Walker shortly afterwards in the staff common room, he had another opportunity to ask Mr Walker why he would not batch. In his evidence, Mr Charteris agreed that was so and could give no good reason why he did not ask that question. Even when Mr Walker said that he was going to see his doctor about stress, Mr Charteris did not seek any elaboration. [61] When the medical certificate was produced at the meeting on 22 December 2010, it was apparently put to one side. This was despite a concession by Mr Charteris in evidence that he was absolutely clear that Mr Walker was suffering from stress to such an extent that he could not work. Mr Walker s evidence was that he explained that the stress was as a result of batching. Mr Charteris denied that this was said but conceded that he did not ask what would then have been the obvious question about the cause of the stress. The fact that Mr Walker s view of the cause of his stress was raised at that meeting was confirmed in the letter of 24 January 2011 when Mr Charteris said In regard to your belief regarding stress, this was discussed at our initial meeting.

17 [62] At the meeting on 23 December 2010, Mr Walker was obviously unwell. Ms Willems told Mr Charteris and Ms Donaghue that Mr Walker was very stressed, describing his condition as 9 out of 10. Ms Donaghue was sufficiently concerned about Mr Walker s condition that she asked if he was taking medication. Immediately after the meeting, Mr Walker had hot flushes and multiple vision and was unable to maintain his balance. Mr Charteris was made aware of this and offered to have someone drive Mr Walker home. [63] These events occurred against a background of the conversations on 14, 15 and 17 December 2010 in which Mr Walker said he raised his concerns about stress or inability to sleep resulting from the batching work. Mr Charteris denied that the linkage was made in what Mr Walker said on those occasions but I am satisfied on the evidence that it was. Indeed, in answer to questions in cross-examination, Mr Charteris agreed that Mr Walker was having to deal with complaints about Mr Ritchie s work and that it was an obvious implication that Mr Walker was suffering from stress as a result. [64] Despite all of these events, Firth chose not to investigate Mr Walker s reported stress. This was a serious failure which went to the heart of the justification of the dismissal. As both Mr Charteris and Ms Creagh conceded, Mr Walker would have been acting properly if he refused to carry out a task which caused him undue stress. It would have been a health and safety matter, not a disciplinary matter. Mr Walker would not have been dismissed. The union s role [65] In the course of the meetings on 22 and 23 December 2010, the union organisers involved apparently told Mr Charteris that they were comfortable with the procedure being adopted by Firth. Ms Swarbrick submitted that Firth was entitled to rely on this in mitigation of any procedural deficiencies there might have been. [66] On this issue, Mr Nevell relied on the decision of the Chief Judge in Gilbert v Transfield Services (New Zealand) Limited 9 where he said: 9 [2013] NZEmpC 71.

18 [143] Nor does it change the position, as was Transfield s case, that the EPMU may have either agreed with the Transfield process in this case or at least acquiesced in it. Mr Gilbert had vested rights in his employer s compliance with the collective agreement that the union of which he was a member was not entitled to compromise in consultation with the employer. It could not be right to say that Mr Gilbert cannot succeed in his claim because of his union s apparent acquiescence in the employer s proposals. This is Mr Gilbert s personal grievance that must be judged by the s 103A test of assessing the situation between the individual employee and his employer. [67] Ms Swarbrick made a valiant attempt to distinguish this decision. She made three points. Firstly, she submitted that there was not just apparent acquiescence but active endorsement in this case. While it was the evidence of Firth s witnesses that this was so, it was Mr Walker s evidence that he never gave any such endorsement, nor was he aware of it being given. It would be unjust to conclude that Mr Walker s rights could be compromised without his actual agreement. [68] Ms Swarbrick then noted that an important factor in Gilbert appeared to be that the union s acquiescence could not compromise the provisions of a collective agreement and no such claim was made in this case. Whether or not a specific claim was made in the pleadings, this case also involves a provision of a collective agreement which cannot be ignored As noted earlier, cl of the agreement required that there be a full and unbiased investigation, including a full explanation by the employee and any witnesses, before any disciplinary action was taken. That did not occur. [69] Ms Swarbrick s third submission was that the decision in Gilbert appeared to overlook the statutory requirement of good faith. She submitted that a failure to raise concerns about the process at the time was a breach of good faith which precluded Mr Walker from complaining about the process later. This submission cannot be accepted. Taken to its logical extreme, the result would be that only a well informed and relatively sophisticated employee could be assured of fair treatment. The obligation of good faith is mutual. Whatever the employee may do, the obligations of the employer still remain. It is significant also that the right to raise and pursue a personal grievance may be exercised up to 90 days after the employer s action in question. A key part of the rationale for allowing that time period is to

19 enable the employee to analyse what has happened and, most importantly, to seek advice. Were all Firth s concerns put to Mr Walker? [70] An essential consideration when applying the test of justification is whether the employer raised its concerns with the employee and gave the employee a proper opportunity to respond before making any decision. 10 In this case, the letter of 24 January 2011 confirming Mr Walker s dismissal and giving the reasons for it made it clear that the deciding factor was Mr Walker s conduct in the course of the disciplinary meetings. Having concluded that Mr Walker had breached Firth s code of conduct by his actions on 21 December 2010, the letter continued: We were initially undecided as to whether the incidents constituted, conduct that has caused Firth to lose trust and confidence in you as an employee" (from the Firth Code of Conduct) and we acknowledge the gravity of the situation. However, we have also considered your statements. apparent attitude and behaviour since the incident; including your derogatory comments about Aaron, apparent lack of regret or admittance of wrongdoing, and somewhat cavalier attitude to scheduled meetings and process.. We believe that this subsequent behaviour has compounded the original issue and, taken as a whole, your conduct has been such as to constitute serious misconduct so that Firth has lost trust and confidence in you. This is why Firth has terminated your employment. [71] It was clear from the evidence that it was never put to Mr Walker that his conduct in the disciplinary meetings was of concern to Firth or, more importantly, that it may be taken into account in any decision about disciplinary action. As Mr Charteris candidly conceded in answer to a question in cross-examination, this was completely unfair. Notwithstanding that, Mr Charteris agreed that Mr Walker s behaviour in the disciplinary meetings was a factor in the decision to dismiss him. [72] It was also a breach of good faith. Parties to an employment relationship are subject to a statutory duty of good faith imposed by s 4 of the Act. An aspect of that duty provided for in s 4(1A)(c) is that, where an employer is proposing to make a decision which may include dismissal, the employer must provide the employee with 10 This is now explicitly provided for in subs (3) of the amended s 103A but it is a matter of natural justice and has always been a fundamental aspect of fair and reasonable treatment.

20 access to all information relevant to the decision and an opportunity to comment on it before the decision is made. In this case, Firth not only failed to tell Mr Walker that his conduct in the disciplinary meetings was being taken into account in the decision whether to dismiss him but also failed to give him all of the information on which Firth s concerns about his behaviour were based. [73] As it was these behavioural issues which were said to have tipped the balance in deciding to dismiss Mr Walker, Firth s failure to put them to Mr Walker also goes to the heart of the justification of the dismissal. Cooling off period [74] Mr Nevell submitted that Mr Charteris decision to hold the first meeting with Mr Walker the day following the events of 21 December 2010 did not allow sufficient time for the two men to approach the matter calmly. There was some evidence to support this proposition. Immediately before the first meeting started, Mr Walker said to Ms Donaghue that if Mr Charteris threatened him again, he would walk out of the meeting. As it appears the meeting then proceeded without any ill feeling being expressed, however, no great weight can be placed on this issue. Predetermination [75] There were indications in notes made by Ms Donaghue that the decision to dismiss Mr Walker was made at an early stage of the disciplinary process. But those notes were not clear and, in Ms Donaghue s absence, unexplained to a large degree. All that can be concluded with any certainty is that Ms Creagh decided immediately prior to the meeting on 24 January 2011 that Mr Walker should be dismissed if nothing new emerged. While that was not best practice, the conditional nature of Ms Creagh s conclusion leads me to give relatively little weight to it. The unfairness which resulted was because Mr Charteris and Ms Donaghue chose not to inform Ms Creagh of what was said at that meeting, in particular Mr Walker s statement that he would batch provided he was not following Mr Ritchie.

21 Substantive justification [76] The deficiencies in the investigation process in this case were so fundamental that Firth was in no position to assess the true nature and significance of Mr Walker s conduct on 21 December In particular, the failure to follow up the clear signals from Mr Walker that his refusal to batch was the result of stress, meant that the decision was made in ignorance of vital information. [77] I am satisfied on the evidence that, had the issues been properly investigated, any fair and reasonable employer would have concluded that Mr Walker s refusal to batch on 21 December 2010 was a health and safety issue, not a disciplinary issue. I am also satisfied that, had the disciplinary process been conducted by a totally disinterested person, the likely conclusion would have been that Mr Charteris was responsible for the angry confrontation which occurred on 21 December 2010, not Mr Walker. Conclusion [78] Drawing all of these factors together, I find that Firth s investigation and decision making process in this case was seriously flawed in many respects and that there was no proper foundation for the decision reached. Viewed objectively, it was plainly not what a fair and reasonable employer would have done in all the circumstances. The dismissal was unjustifiable. Remedies [79] Although Mr Walker sought a number of remedies in his statement of claim, these were narrowed in the course of submissions to claims for reinstatement and compensation for distress. Reinstatement [80] The remedy of reinstatement is governed by s 125 of the Act. The amendments to the Act which took effect on 1 April 2011 included changes to s 125. In a case such as this, there has been debate whether the version of s 125 to be

22 applied is that existing at the time of the dismissal or that which is in force at the time a decision is made. 11 Both counsel submitted that it should be the former version of s 125 which was in effect when the dismissal occurred and, as a result, the issue was not argued in this case. The issue was, however, fully analysed and discussed by Judge Inglis in Allen v C3 Ltd 12 where she concluded that the test for reinstatement is the one which was in force at the time the dismissal occurred. I agree with that decision. [81] In January 2011, s 125 of the Act was: 125 Reinstatement to be primary remedy (1) This section applies where (a) the remedies sought by or on behalf of an employee in respect of a personal grievance include reinstatement (as described in section 123(a)); and (b) it is determined that the employee did have a personal grievance. (2) If this section applies the Authority must, whether or not it provides for any of the other remedies provided for in section 123, provide, wherever practicable, for reinstatement as described in section 123(a). [82] The effect of subs (2) is that I must order reinstatement if I am satisfied that it is practicable. The meaning of that word in this context was recently considered by the Court of Appeal in Lewis v Howick College Board of Trustees 13 where the Court endorsed the view adopted in a previous decision: 14 Practicability is capability of being carried out in action, feasibility or the potential for the reimposition of the employment relationship to be done or carried out successfully. [83] Reinstatement was opposed by Firth on a number of grounds. The first was that Firth had no vacancies for drivers at its Dunedin plant. That, in itself, does not make reinstatement impracticable. There was evidence that Firth now has five positions for drivers in Dunedin and had employed one as recently as three weeks prior to the hearing. It did so in the knowledge that Mr Walker was seeking reinstatement. 11 See the commentary to Employment Law, Wellington, Brookers at ER [2012] NZEmpC [2010] NZCA 320 at [2]. 14 New Zealand Educational Institute v Board of Trustees of Auckland Normal Intermediate School [1994] 2 ERNZ 414 (CA).

23 [84] The second point relied on by Firth was that Mr Walker delayed in pursuing his claim. There is no doubt that this is correct. In particular, there was an unexplained delay of a year between June 2011 when mediation took place and July 2012 when proceedings were lodged with the Authority. Again, the mere fact of delay does not mean that reinstatement is impracticable. For delay to be significant, there must be evidence that the delay has affected the likelihood of the employment relationship being successfully re-established. There was no evidence to that effect in this case. [85] The third point raised by Firth was that Mr Walker was that, at the time of the hearing, Mr Walker was still unable to work. This is an important factor as it would be pointless to order Mr Walker s reinstatement to a position he could not take up. If reinstatement is to be ordered, it must first be established that Mr Walker is ready and able to do the job. [86] The remaining grounds relied on by Firth merge. It was said that Mr Walker was dismissed for failing to follow a proper instruction and that there was nothing in the evidence to suggest that he would follow that instruction now. It was then said that Mr Walker was dismissed for aggressively confronting Mr Charteris, that he was not apologetic and that there was no evidence to suggest he would not do so again. Finally, it was said that Firth no longer has trust and confidence in Mr Walker and that this, of itself, renders reinstatement impracticable. The flaw in all three of these objections is that they rely on the view of events put forward in the evidence in chief of Firth s witnesses. I have found that view was seriously flawed and unjustifiable. In many respects, Firth s witnesses accepted this was so in their oral evidence. It cannot now be relied on. [87] On the positive side, there was evidence that Mr Walker had a good working relationship with other employees of Firth at the Dunedin plant. He had been there seven years. It was also common ground that Mr Walker was a good worker. Mr Charteris described him as a competent driver and batcher. This was reflected in the fact that Mr Walker was trusted with day to day management of the plant in Mr Ritchie s absence.

24 [88] Overall, I am satisfied that the employment relationship could be successfully re-established. It may not be easy at first and it will require both Mr Charteris and Mr Walker to put the past behind them. I am confident that they should be able to do that. Having reached that conclusion, I must order reinstatement. [89] Mr Nevell submitted that Mr Walker should be reinstated to the position of a driver only, not as a driver / batcher. That is not appropriate. All the evidence was that Mr Walker was employed as a driver. His deployment from time to time to the role of batcher was not in reliance on his position title but rather as specifically provided for in cl 3.3(a) of the applicable collective agreement. The Court cannot negate a provision of the collective agreement. [90] As noted earlier, reinstatement must be subject to the condition that Mr Walker first establish by evidence that he is fully fit to resume his previous position as a driver at Firth s Dunedin Plant. This must be done through affidavit evidence filed and served within 15 working days after the date of this decision. [91] Given the length of time for which Mr Walker has been away from the plant, I also impose two other conditions. Reinstatement shall take place on a date determined by Firth during the 20 working days after the evidence of Mr Walker s fitness to work has been filed. This will give time for Firth to carry out any reorganisation that may be necessary to make a position available to Mr Walker at the Dunedin plant. The second additional condition is that Mr Walker must cooperate fully in any retraining required to meet changed working conditions. Compensation [92] Mr Walker seeks compensation for humiliation, loss of dignity and injury to his feelings arising out of his dismissal and the manner of it. In his final submissions, Mr Nevell quantified the sum sought as $20,000. [93] Compensation can only be awarded in relation to distress established by evidence. As Ms Swarbrick properly submitted, there was little such evidence given in this case. In his evidence in chief, Mr Walker spoke of being angry and