COMMISSIONER OF POLICE V HAWKINS CA CA711/07

COMMISSIONER OF POLICE V HAWKINS CA CA711/07 12 June 2008IN THE COURT OF APPEAL OF NEW ZEALAND CA711/07 [2008] NZCA 164BETWEEN COMMISSIONER OF POLICE Appellant AND ROBERT CRAIG HAWKINS Respondent Hearing: 21 April 2008 Court: Glazebrook, O'Regan and Ellen France JJ Counsel: J C Holden and A L Martin for Appellant C P Brosnahan for Respondent Judgment: 12 June 2008 at 9.30 amJUDGMENT OF THE COURT A The application for leave to appeal is granted with regard to the following questions: (a) Does s 114(1) of the Employment Relations Act 2000 require the employer to have turned its mind to the 90 day period and agree (expressly or impliedly) to proceed? (b) Does consent have to be pleaded by the employee? (c) Can a voluntary disengagement under s 28D of the Police Act 1958 be reversed by way of a personal grievance? B The application is otherwise declined. C There are no costs orders.____________________________________________________________________REASONS OF THE COURT(Given by Glazebrook J)Table of ContentsPara NoIntroduction [1]Consent [8]Statutory disengagement [15]Constructive dismissal [21]Judge Shaw's decision [26]Discussion [35]Presumption of innocence [40]Factual Findings [44]Result and costs [48]Introduction[1] Mr Hawkins was a police officer based in Taumarunui. On 10 May 2001 he applied to disengage from the police on medical grounds under s 28D of the Police Act 1958. This was the day after police commenced an inquiry into allegations that Mr Hawkins had assaulted two young men in the police cells on 4 March 2000. [2] Mr Hawkins' application to disengage was supported by reports from two medical professionals as required by s 28D and was accepted by the Commissioner on 21 June 2001, taking effect immediately. [3] On the completion of the investigation into the events in the cells, Mr Hawkins was, on 18 June 2001, charged with two counts of assault. In 2003, Mr Hawkins was discharged under s 347 of the Crimes Act 1961 in relation to those charges. [4] After the conclusion of the criminal charges, Mr Hawkins began, in September 2003, actively to pursue a personal grievance on the basis of constructive dismissal. He had already signalled his intention to pursue a personal grievance in abald statement to that effect in a letter of 18 September 2001 and in more detail in a letter of 4 October 2001. [5] In the Employment Court, Judge Shaw (EmpC WN WC29/07 30 November 2007) held that: (a) The Commissioner impliedly consented to the personal grievance being raised outside the 90 day time limit. (b) The fact that Mr Hawkins disengaged voluntarily under s 28D of the Police Act did not prevent him raising a personal grievance but might be relevant to the question of remedies should his claim succeed. (c) Mr Hawkins was constructively and unjustifiably dismissed from his employment as a police officer. (d) The cause of Mr Hawkins' resignation was the ongoing betrayal of his trust and confidence in the police administration through its failure to address the systemic dysfunction in the Taumarunui police station which caused Mr Hawkins to become seriously unwell. (e) His resignation was actively and wrongly encouraged by the actions of Inspector Allan. Both his impending resignation and the reasons for it were foreseeable to the Commissioner. (f) It was not open to the Commissioner, acting fairly and reasonably, to have taken the approach it did to Mr Hawkins even in the light of the complaints made against him. Judge Shaw said:While there can be no criticism of the police for the decision to lay criminal charges against Mr Hawkins, it is incumbent on the Commissioner to ensure that the presumption of innocence applies to police officers as it does to all citizens.(g) The question of remedies, including reinstatement, was reserved for later determination.[6] The Commissioner seeks leave to appeal against Judge Shaw's decision on the following grounds: (a) The Employment Court was wrong to find that the Commissioner consented to the personal grievance being brought out of time. (b) The Employment Court was wrong to treat a voluntary disengagement on medical grounds as a resignation. (c) The Employment Court was wrong to find that a multiplicity of allegations against different members of the police could create a breach of duty to meet the test for constructive dismissal. (d) The Employment Court was wrong to apply the principle of the presumption of innocence in this context. (e) The Employment Court erred in law in making a number of its findings when there was no basis in the evidence. [7] We deal with each of the proposed grounds in turn. For each we must consider the statutory criteria for the grant of leave. Leave to appeal may be granted only if, in this Court's opinion, a question of law involved in the proposed appeal, by reason of its general or public importance or for any other reason, ought to be submitted to this Court for decision: Employment Relations Act 2000, s 214(3).Consent[8] It is common ground between the parties that Mr Hawkins' personal grievance was raised outside the 90 day period. Judge Shaw held that the Commissioner consented to this. The Commissioner submits that she was wrong in law to do so. [9] The Commissioner submits that, on a proper construction, "consent" in s 114(1) of the Employment Relations Act means that the employer has eitherexpressly turned its mind to the 90 day issue and agreed to proceed anyway, or that it can be implied that the employer has turned its mind to the 90 day issue and agreed to proceed anyway. Further, the Commissioner submits that consent must be pleaded by the employee. [10] In the Commissioner's submission, acquiescence by the employer can be sufficient, but only if there is evidence that the employer has turned its mind to the 90 day issue and then sat on its rights, thereby acquiescing. There was no such evidence in this case. [11] If granted leave on this question, the Commissioner would argue that the decision of the Employment Court in Phillips v Net Tel Communications [2002] 2 ERNZ 340 is wrong. In that case, a grievance was raised five months after the dismissal. The employer by its solicitors responded and indicated it declined to offer the compensation sought. The employer did not assert that the grievance was out of time but rather expressed uncertainty as to how to proceed. Later, after the proceedings had been filed in the Employment Tribunal, the employer filed a notice of intention to defend which did not protest jurisdiction on the ground the grievance had not been submitted within 90 days. Judge Travis was required to consider the time limit contained in s 33(2) of the Employment Contracts Act 1991, which is materially identical to that in the current s 114. He held that consent may be implied from an employer's actions in relation to the grievance. In this case, the employer had not objected to the lateness of the submission of the grievance and there was implied consent under s 33(2). [12] The Commissioner's proposed submission, were leave to be granted, would also run against to the decision of the Employment Court in Jacobsen Creative Surfaces Ltd v Findlater [1994] 1 ERNZ 35. In that case (also decided under s 33 of the Employment Contracts Act) there was correspondence following the respondent's redundancy. The grievance was not formally submitted to the employer until 136 days after the dismissal and, at that time, the employer continued correspondence with the respondent's agent about the reasons for the dismissal. Judge Palmer rejected a contention by the employer that s 33 required "informed" consent. An employer to whom a grievance was submitted outside the 90 day periodshould know of his or her right to withhold consent at the time the grievance is accepted. The Judge was of the view that it would be incorrect and improper to imply such a requirement into the plain words of s 33: at 54. The question is simply whether as a matter of fact and degree the actions of the employer comprise a consent to the submission of stale grievance. [13] The issue of what constitutes consent has not been considered by this Court in the context of s 114(1). It is an important matter with potentially very wide implications for all employers and employees. It is thus appropriate to grant leave on this issue and on the related issue of whether consent has to be pleaded. As the Supreme Court noted in its recent judgment in Creedy v Commissioner of Police[2008] NZSC 31 in the context of the "exceptional circumstances" provision in s 114(4)(a), 90 days is a short time limit and there may be potentially serious consequences for an employee if he or she is unable to bring a grievance (at [32]). [14] We note that, if the correct test was applied, whether what the Commissioner did in this case amounted to consent is a factual matter and cannot be appealed to this Court. For the avoidance of doubt, leave does not extend to this issue.Statutory disengagement[15] The Commissioner submits that Mr Hawkins did not resign. Rather, he initiated a statutory process by which the Commissioner permitted him to leave the police pursuant to s 28D of the Police Act. To the extent that the Employment Court appears to have held that a constructive dismissal claim can override the statutory termination, the Commissioner submits that the Court fell into error. [16] The Commissioner points out that, in the case of a compulsory disengagement on medical grounds under s 28C of the Police Act (not invoked by the Commissioner here), there is a mechanism by which a police member can remain a member of the police until a personal grievance is disposed of (s 28(4)). By contrast, there is no equivalent of this mechanism in s 28D.[17] The Commissioner submits that, irrespective of whether Mr Hawkins was truly unfit to discharge his duties (as he claimed at the time and has never resiled from), the voluntary medical disengagement stands – by operation of statute. The Commissioner points out that there were significant benefits to Mr Hawkins in voluntarily disengaging when he did, including that: (a) He received approximately $228,000 by way of lump sum superannuation payment from the Government Superannuation Fund. (b) By disengaging, Mr Hawkins avoided the risk of being convicted while still a sworn member of the police, in which case he may not have been able at that time to disengage on medical grounds and access superannuation benefits as a lump sum. (c) By disengaging, Mr Hawkins avoided the possibility of internal police disciplinary charges, which would not necessarily have been co-extensive with the criminal charges, or resolved in Mr Hawkins' favour. [18] Mr Hawkins submits that there is no material difference between resignation and voluntary disengagement. They are both simply ways of terminating employment and, if the employer's conduct has created the need for the voluntary disengagement or other method of termination, no distinction should be drawn as to the consequences. [19] We are satisfied that this is a question of law of potential significance to all voluntary disengagements from the police. It is a question of law of sufficient general and public importance to justify the grant of leave to appeal. [20] We note, however, that much of the Commissioner's argument on the leave application appeared to be an attempt to challenge the factual findings in this particular case. For the avoidance of doubt, leave is restricted to the issue of principle.Constructive dismissal[21] The Commissioner submits that the Employment Court wrongly reduced the test for constructive dismissal to two steps: (a) Did police actions (or inaction) cause Mr Hawkins to resign? (b) Whether a substantial risk of resignation was reasonably foreseeable to the Commissioner having regard to the seriousness of the breach. [22] It is submitted by the Commissioner that the correct approach has three steps: (a) A breach of employment duty by the employer, reaching the threshold of being dismissive or repudiatory conduct. (b) That caused the employee to resign; and (c) That a substantial risk of resignation was reasonably foreseeable. [23] The Commissioner submits further that, on the Employment Court's findings of fact, there was no repudiatory breach of employment duty because significant and historical events for which the Commissioner was not responsible (including the historical association with Sergeant Webb) were operative in Mr Hawkins' decision to disengage. [24] Mr Hawkins agrees that the above approach is the correct one and submits that the Judge correctly applied this three-stage test. He submits that, when read correctly, the Judge's approach to the breach of duty issue is orthodox and does not disclose an error of law. [25] In order to assess these submissions, we first need to examine Judge Shaw's decision in more detail.Judge Shaw's decision[26] Mr Hawkins' claim of constructive dismissal stemmed from events which occurred at Taumarunui police station in 2000 and 2001. Judge Shaw described the station during this period as "not a happy working environment" and this was in a large part due to tension between Detective Sergeant Webb and other staff (see at [36]). Judge Shaw found that there had been difficulties between Mr Hawkins and Detective Sergeant Webb in the past. She said that, although they were of similar rank, Mr Hawkins felt intimidated and bullied by him. Against that background, the fact that Detective Sergeant Webb was assigned to do the initial investigation into the assault complaint against him undermined Mr Hawkins' confidence that he would get fair treatment in the course of the investigation. The Judge held that, whether that was a correct assumption or not, it was a reasonable one in the light of what had gone before. [27] The next relevant matter was the conduct of Inspector Allan. The Judge found that Inspector Allan on 9 May 2001, after a staff meeting where the decision to lay criminal charges against Mr Hawkins was announced, told Sergeant Craig that he was surprised Mr Hawkins was still in the country. The Judge also accepted that the Inspector had also said that he could not see Mr Hawkins returning to Taumarunui as the community would not put up with it, particularly in the light of what had happened to the officer involved in the then recent Waitara shooting, and that, based on the evidence, it would be foolish for Mr Hawkins to defend the criminal charges. [28] Inspector Allan denied saying to Sergeant Craig that he was surprised Mr Hawkins was still in the country or that it was foolish for Mr Hawkins to defend the charges. Inspector Allan accepted that he had expressed reservations about Mr Hawkins returning to the community but did not agree that he had privately spoken to Sergeant Craig after the meeting. [29] The Judge noted that the only contemporaneous record of the alleged conversation between Sergeant Craig and Inspector Allan was Mr Hawkins' notes of what Sergeant Craig reported to him. Because Sergeant Craig had come directly from the meeting, the Judge accepted that those notes were a fair account of whatwas said both at the staff meeting and to Sergeant Craig by Inspector Allan after the meeting. She also found that it was more likely than not that Inspector Allan spoke to Sergeant Craig with the intention of sending a message to Mr Hawkins about the strength of the police case. [30] The Judge was satisfied that, although Mr Hawkins initially believed that the evidence against him would not support a successful prosecution, that belief was completely undermined by the statements made by Inspector Allan as reported to him by Sergeant Craig. These statements fuelled his fears that, because of Detective Sergeant Webb's involvement, he was being "fitted up". This led to such an immediate decline in Mr Hawkins' mental health that his friends held real fears about him. The Judge held that, given Mr Hawkins' improving medical condition up to 8 May 2001, even the prospect of facing criminal charges would not necessarily have led him to apply to disengage as a matter of extreme urgency. It was the knowledge that his area controller believed that his days of policing in Taumarunui were over and that the evidence against him was very strong that led Mr Hawkins to believe that no matter what happened the police administration had made up its mind to get rid of him. Although prospects of work other than in Taumarunui were raised, Mr Hawkins' personal family circumstances made working elsewhere an unrealistic alternative. [31] The Judge rejected the Commissioner's submission that it was the knowledge that he was to be charged with a criminal offence that led Mr Hawkins to his decision to seek disengagement because he was concerned that the criminal charges might jeopardise his ability to apply later and be accepted for medical disengagement. [32] The Judge held that the prime responsibility for Mr Hawkins' resignation lay with Inspector Allan. The Judge held that the actions of Inspector Allan broadcasting his views on the likely outcome of the prosecution and Mr Hawkins' future were responsible for destroying what remained of any trust and confidence Mr Hawkins had in his employer. She said that this trust and confidence had already been severely tested principally through the actions of Detective Sergeant Webb and the failure of Senior Sergeant Buchanan and Inspector Allan to take any effectivesteps to mitigate the damage inflicted on Mr Hawkins. However, the last straw was Inspector Allan's premature and overstated pronouncements about the criminal charges that led to Mr Hawkins' decision to resign. [33] The Judge was satisfied that Inspector Allan deliberately set about undermining the prospect of Mr Hawkins continuing his employment with the police by announcing the criminal investigation before Mr Hawkins was informed. The Judge also found that Inspector Allan spoke privately to Sergeant Craig in the knowledge that what he said would be conveyed to Mr Hawkins. He thus took positive steps towards encouraging Mr Hawkins to leave the police. [34] The Judge found that the Commissioner, through his agents at the Taumarunui police station and indeed at police national headquarters, should and would have foreseen the resignation and the reasons for it. She said that, Mr Hawkins' application to disengage was unequivocal notice to police national headquarters of his intention to resign and the reasons for it. In particular, his description of feeling anxious and alienated from the support of police management and his mistrust of police management and administration could have left the Commissioner in no doubt not only as to Mr Hawkins' intention to resign but as to the actions of the Commissioner's officers which caused it.Discussion[35] The Commissioner's first complaint is that Judge Shaw truncated the test for constructive dismissal. We do not accept this submission. Judge Shaw interpreted what Inspector Allan said to Sergeant Craig as meaning that Inspector Allan thought that Mr Hawkins should not work again in Taumarunui as a police officer, whatever the outcome of the criminal prosecution. The Judge also found that Inspector Allan intended his comments to be conveyed to Mr Hawkins, both as to Mr Hawkins not working again as a police officer and as to the likelihood of success in the criminal prosecution. This exacerbated what she considered to be understandable fears by Mr Hawkins as to the fairness of the investigation given the involvement of Detective Sergeant Webb. The Judge held that Inspector Allan thus took positive steps to encourage Mr Hawkins to leave the police.[36] Against the background of these factual findings (which are not able to be challenged in this Court), it was open to Judge Shaw to consider that there had been a repudiatory breach of duty. This was therefore a case of a breach of duty (in this case the obligation of trust and confidence) by an employer which led Mr Hawkins to resign: see the principles set out by Cooke J in Auckland Shop Employees Union v Woolworths (NZ) Ltd [1985] 2 NZLR 372 at 374 – 375 (CA), and the commentary in LexisNexis Mazengarb's Employment Law (looseleaf ed.) at [ERA103.11]. Indeed, it appears from Judge Shaw's decision that the contrary was not seriously contended for by the Commissioner, should Judge Shaw's factual findings go against the Commissioner. The real issues before Judge Shaw were whether the alleged comments were in fact made by Inspector Allan and, if so, whether they caused the resignation. In our view, Judge Shaw applied the correct test and found against the Commissioner on all three limbs. [37] The Commissioner's next complaint was that the Judge wrongly took into account historical matters unrelated to the decision to seek disengagement. However, Ms Holden, on behalf of the Commissioner, accepted that a course of conduct can lead to a constructive dismissal and that there may be a "last straw" that leads to the resignation. As long as the "last straw" was in itself a sufficiently serious breach of duty and caused the resignation, she accepted that this could amount to constructive dismissal. She also accepted that the seriousness of such a "last straw" can be judged against the whole background of events. These concessions were well made. [38] The examination of the difficulties with Detective Sergeant Webb was seen by Judge Shaw as necessary background to explain Mr Hawkins' concern at the appointment of Detective Sergeant Webb to investigate the complaints against him. In her view, these historical events and the involvement of Detective Sergeant Webb in the investigation of the assault complaints also explained Mr Hawkins' reaction to Inspector Allan's comments. She thus saw them as directly relevant to what she held was the triggering breach of duty by Inspector Allan. These are factual findings that cannot be appealed to this Court. [39] Leave to appeal is refused on this issue.Presumption of innocence[40] The Commissioner submits that it was wrong in law for the Judge to have regard to the presumption of innocence – see her comment set out at [5](f) above. This presumption applies in a criminal trial. By contrast, employers are not required to presume an employee is innocent of any criminal charges an employee may face. An employer may, for example, stand down or suspend an employee pending the outcome of a criminal trial (as occurred in Mr Hawkins' case). Further, an employer is generally entitled to investigate and take disciplinary action in relation to events that are the subject of criminal charges, unless the employee obtains an order staying such actions: Russell v Wanganui City College [1998] 3 ERNZ 1076; Sotheran v Ansett New Zealand Ltd [1999] 1 ERNZ 548; Wackrow v Fonterra Co-operative Group Ltd [2004] 1 ERNZ 350; Singh v Chief Executive Officer of the Department of Labour [2005] 1 ERNZ 569. [41] The Commissioner accepts that the Police did not initiate disciplinary action in relation to matters that were the subject of the criminal charges in the present case, but any such action would have been governed by the Police Act and regulations and not the presumption of innocence. [42] Mr Brosnahan, for the respondent, candidly admits that he could not understand the reference to the presumption of innocence in the Judge's decision. He submits, however, that it was not necessary for her decision and he does not seek to rely on it. [43] We accept the Commissioner's submission that the presumption of innocence is not relevant in the employment context. There is no burden of proof on an employer who believes that an employee has engaged in serious misconduct; rather, the employer must show that, after a complete and fair inquiry, it was justified in believing serious misconduct had occurred: see the commentary in Mazengarb's Employment Law at [ERA102.8] and the cases cited therein. The standard of proof is the normal civil standard, and criminal law principles such as the presumption of innocence will not normally be relevant. However, as it was not necessary for herdecision and Mr Hawkins places no reliance on it, leave to appeal on this point is unnecessary and consequently refused.Factual findings[44] The Commissioner wishes to challenge a number of the findings of the Employment Court on the basis that there was no evidence to support them. The Commissioner submits that findings in relation to Inspector Allan's comments and Mr Hawkins' medical condition were not open on the evidence. The Commissioner also wishes to challenge the finding that Inspector Allan's comments made it reasonably foreseeable to the Commissioner that Mr Hawkins would voluntarily disengage. [45] Mr Brosnahan submits that all of the findings were well open to the Judge on the evidence of Mr Hawkins himself and, in many cases, also on other evidence. He submits that the Commissioner's real complaint is that Mr Hawkins' evidence was accepted by the Judge and the Commissioner's evidence was rejected. [46] We accept Mr Brosnahan's submissions. As there was evidence to support the Employment Court findings, there was no error of law. We note in any event that some of the findings the Commissioner wishes to challenge were not essential to the decision. [47] Leave to appeal on this issue is refused.Result and costs[48] For the reasons given above leave to appeal is granted with regard to the following questions: (a) Does s 114(1) of the Employment Relations Act 2000 require the employer to have turned its mind to the 90 day period and agree (expressly or impliedly) to proceed?(b) If the answer to (a) is yes, does consent have to be pleaded by the employee? (c) Can a voluntary disengagement under s 28D of the Police Act 1958 be reversed by way of a personal grievance? [49] Leave is otherwise declined. [50] The Commissioner has been only partly successful in his leave application. Costs should therefore lie where they fall on this application.Solicitors: Crown Law Office, Wellington Roger Crowley, Wanganui for Respondent