ASLAM v TRANSPORTATION AUCKLAND CORPORATION LIMITED [2018] NZCA 301

ASLAM v TRANSPORTATION AUCKLAND CORPORATION LIMITED [2018] NZCA 301 [9 August 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA8/2018[2018] NZCA 301BETWEEN MOHAMMAD ASLAMApplicantAND TRANSPORTATION AUCKLANDCORPORATION LIMITEDRespondentHearing: 14 June 2018Court: Brown, Clifford and Williams JJCounsel: R S Pidgeon for ApplicantS R Worthy and D S Gunasekara for RespondentJudgment: 9 August 2018 at 3.30 pmJUDGMENT OF THE COURTA The application for leave to appeal is declined.B The applicant must pay the respondent costs for a standard application on aband A basis and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] The applicant, Mr Aslam, applies for leave under s 214(2) ofthe Employment Relations Act 2000 (the Act) to appeal against a decision ofthe Employment Court dismissing Mr Aslam's claim for unjustifiable dismissal byTransportation Auckland Corporation Ltd (Transportation Auckland).1 Leave may begranted if, in the opinion of this Court, a question of law involved in the proposedappeal is one that, by reason of its general or public importance or for any other reason,ought to be submitted to this Court for decision.2Relevant factsThe incident on the bus[2] Mr Aslam was employed as a bus driver. On 4 July 2016 there was an incidentwhen Mr Aslam was driving bus route 392 from Onehunga into the Aucklandcity centre. One of the passengers drew to Mr Aslam's attention that the bus had failedto turn left onto Market Road, instead continuing to Newmarket. Mr Aslamerroneously thought that he was following the correct route. Hence he did not acceptthat he was driving the wrong way. This led to an exchange between them, duringwhich the passenger took a video on his mobile phone, which culminated in thepassenger leaving the bus.[3] Later that day the passenger made a complaint to the Transportation Aucklandcall centre alleging a verbal and physical assault by Mr Aslam, stating that Mr Aslamhad shoved the passenger off the bus.The disciplinary procedure[4] Mr Aslam was employed pursuant to the NZ Tramways Union-AucklandFirst Union Incorporated Collective Agreement 2015–2017 (the CollectiveAgreement). It provided a non-exhaustive definition of serious misconduct, includingabuse of a member of the public or company employee and assaulting another personwhilst on duty or on company premises.[5] Clause 47 of the Collective Agreement dealt with disciplinary procedures andprocess requirements. Specifically cl 47.2 provided that when an issue arose, theemployer would usually make initial inquiries with the employee concerned to1 Aslam v Transportation Auckland Corporation Ltd [2017] NZEmpC 161.2 Employment Relations Act 2000, s 214(3).determine whether formal action was required. Clause 47.9 (Investigations) providedthat if the employer believed that an incident, allegation or matter was one ofserious misconduct, an investigation meeting would be arranged. If the employer wasnot satisfied with the employee's explanation in regard to the incident or allegation, adisciplinary meeting would be held.[6] Clause 47.10 (Disciplinary Meetings) provided that after consideringthe employee's explanation the employer was to advise the employee if, inthe employer's opinion, the matter was one that might result in disciplinary actionbeing taken. If it was, then the employer would give the employee an opportunity toattend a meeting. If the employer was not satisfied with the employee's explanationin regard to the matter after the disciplinary meeting, then the employer may chooseto issue either verbal counselling or a warning or dismissal.The process followed concerning the incident[7] Transportation Auckland initially investigated the allegation by talking to thepassenger, requesting a further written account of the incident from the passenger andrequesting any evidence that he might have. The passenger supplied a further writtenstatement and the video he had taken.[8] At a meeting on 13 July 2016 Mr Froggatt, the President of theTramways Union, was advised of the complaint and shown the video. Mr Froggattthen met with Mr Aslam privately, following which they both met with Mr McLeod,the Regional Operations Supervisor employed by Transportation Auckland. After aperiod during which Mr Aslam was questioned, Mr Aslam was shown a copy ofthe passenger's complaint and the video three times. While Mr McLeod consideredthe video seemed to show Mr Aslam manhandling the passenger, Mr Froggatt claimedthat Mr Aslam was defending himself. As Mr McLeod had concerns about Mr Aslamreturning to work, it was agreed that he would be suspended on full pay while a cl 47.9investigation was arranged.[9] On 19 July 2016 an investigation meeting was conducted led by Mr McLeod.At that meeting Mr Aslam stated that he did not touch the passenger, that the passengerhad touched him and Mr Aslam had told him to return to his seat. Both the passengerand Mr Aslam had become angry and Mr Aslam had told the passenger to get off thebus.[10] Following the investigation meeting Mr McLeod wrote a detailed reportconcluding that there were sufficient grounds to progress to a disciplinary meeting.On 22 July 2016 he wrote to Mr Aslam informing him of his conclusion thatMr Aslam's actions constituted serious misconduct. Mr Aslam was invited to attenda disciplinary meeting on 29 July 2016.[11] At the disciplinary meeting, after initially denying that he had moved towardsthe passenger or into the aisle, it appears that Mr Aslam accepted, following a furtherviewing of the video, that he had moved down the aisle towards the passenger.Mr McLeod concluded that Mr Aslam's conduct amounted to serious misconduct.The meeting was adjourned and Mr Aslam was told that a further meeting would beheld.[12] In a letter of 5 August 2016 to Mr Aslam, Mr McLeod set out the details of theinvestigation and the disciplinary meeting, confirmed his finding that Mr Aslam'sactions constituted serious misconduct, and advised of his preliminary view thatMr Aslam's employment should be terminated summarily. Before a final decision wasmade, Mr McLeod invited Mr Aslam to a further meeting on 11 August 2016 toconsider appropriate disciplinary action.[13] At the meeting on 11 August 2016, after further discussions, Mr McLeodconfirmed his preliminary view to dismiss Mr Aslam. That decision was recorded ina letter to Mr Aslam dated 18 August 2016.The decision of the Employment Court[14] Mr Aslam's personal grievance claim that he had been unjustifiably dismissed3was rejected by the Employment Relations Authority.4 His challenge to that3 Employment Relations Act, s 103(1)(a).4 Aslam v Transportation Auckland Corporation Ltd [2017] NZERA Auckland 45.determination was dismissed by the Employment Court in the judgment he seeks toappeal.5[15] The Court concluded that the process followed by Transportation Aucklandwas fair, that Mr Aslam was advised of Transportation Auckland's concerns and hadseveral opportunities to respond to those concerns, and that Mr McLeod properlyinvestigated the complaint and considered Mr Aslam's explanations and submissions.6[16] The Court considered that the passenger's complaint was consistent andcredible.7 While, as Mr McLeod had recognised, the video recording did not showMr Aslam touching the passenger, nevertheless it showed Mr Aslam's initialmovement towards the passenger and the audio recorded the passenger twice saying"get your hands off of me".8 The Court considered it was open toTransportation Auckland to find that, while not conclusive, the video supportedthe passenger's version of events and to prefer that version.[17] The Court noted that in deciding that summary dismissal was warranted,Mr McLeod took into account not just the unwanted physical conduct with a passengerbut also the lack of honesty in the course of the investigation, the shifting explanationsin relation to how far Mr Aslam moved into the aisle, and the lack of acceptance ofresponsibility.9 The Court considered that those were reasonable considerations andthat Mr McLeod's decision was one that was open to a fair and reasonable employerin the circumstances.10The application for leaveThe original application[18] On 10 January 2018 Mr Aslam filed an application for leave to appeal.The application was deficient in that it failed to identify any questions of law. In a5 Aslam v Transportation Auckland Corporation Ltd, above n 1.6 At [54].7 At [56].8 At [57].9 At [60].10 At [61]. The test of whether a dismissal is justifiable is whether the employer's actions, and howthe employer acted, were what a fair and reasonable employer could have done in all thecircumstances at the time the dismissal occurred: Employment Relations Act, s 103A(2).Minute dated 14 February 2018 Asher J directed that full particularised grounds ofappeal were to be filed and served on or before 28 February 2018.The amended application[19] An amended application for leave dated 17 April 2018 identified as questionsof law three matters:(a) Did the Employment Court err in law in finding thatthe [Transportation Authority's] decision to uphold the allegationsagainst [Mr Aslam] and terminate his employment were what a fairand reasonable employer could have done in all the circumstances atthe time of the dismissal for the purposes of Section 103A ofthe Employment Relations Act?(b) Did the Employment Court err in law in finding that the investigationinto the allegations against [Mr Aslam] was sufficient for the purposesof Section 103A of the Employment Relations Act?(c) Did the Employment Court err in law in finding that [Mr Aslam] wasgiven a reasonable opportunity to respond to [TransportationAuckland's] concerns before dismissing or taking action against himfor the purpose of Section 103A of the Employment Relations Act?[20] Transportation Auckland opposed the amended application on the grounds thatthe identified questions were not in reality questions of law but, in any event, theywere not of general or public importance.The refinement of the proposed questions of law[21] In his written submissions Mr Pidgeon, for Mr Aslam, formulated six errors oflaw in the Employment Court's finding that the investigation byTransportation Auckland into the allegations against Mr Aslam was sufficient for thepurposes of s 103A. However in oral argument he confined his argument to threepoints:(a) Transportation Auckland unreasonably withheld information beforequestioning Mr Aslam (described as the entrapment allegation).(b) Mr McLeod predetermined the decision to find Mr Aslam hadcommitted serious misconduct.(c) Transportation Auckland failed to adequately investigate conflictingversions of events or ascertain whether there were other witnesses.DiscussionThe entrapment contention[22] The basis of this allegation lay in the fact that, although the video was shownto Mr Froggatt at the outset, neither the video nor the passenger's written complaintwere shown to Mr Aslam until after he had provided his initial written response and,more significantly, until after a number of specific questions were put to him atthe initial meeting on 13 July 2016. Mr Aslam's version of the sequence of events atthe meeting is supported by the notes of the meeting made by two persons inattendance, Ms Wood (the Transportation Auckland Regional Human ResourcesManager) and Mr Borren (the Regional Human Resources Adviser). Both thoserecords contain reference to a complaint being made about entrapment. In Mr Borren'snotes, the statement is attributed to Mr Froggatt.[23] It was Mr Pidgeon's submission that Transportation Auckland wished to avoidshowing Mr Aslam the video in order to test whether his response would be consistentwith what the video showed. He submitted that this did not amount to givingMr Aslam a fair hearing and contributed to the finding that he had been dishonest.[24] Mr Worthy's rejoinder was that this assertion was contrary tothe Employment Court's explicit factual finding that Mr McLeod treated Mr Aslamfairly throughout. He made the point that Mr McLeod showed the complaint andthe video to Mr Froggatt before the initial meeting, and that Mr Aslam was able torespond to the video and the complaint at that meeting once they were presented.[25] On this issue the Employment Court stated:[20] Mr Froggatt raised a concern that the video was not shown earlier inthe meeting and that Mr Aslam had not seen a copy of the written complaintuntil the meeting had been going for a while. However, the meeting continuedand Mr Aslam was able to respond to the material once he had seen it.This point is not referred to again in the judgment and it is not apparent fromthe Court's discussion of the matters which Mr Aslam raised at the hearing whetherthe entrapment contention was squarely advanced.[26] Mr Pidgeon argued that, had Mr Aslam been given the opportunity to considerthe content of the video in advance of the meeting and discuss it with an adviser, it islikely that his memory would have been "jogged" and that he would have recalled thathe did, in fact, leave his seat and move into the aisle of the bus as shown in the video.There is some validity in Mr Pidgeon's criticism of the process. However, giventhe nature of the incident it may be thought surprising that Mr Aslam professed norecollection of having moved from his seat into the aisle and confronting the passengerprior to being shown the video.[27] The issue is whether a potential error of law can be identified inthe Employment Court's conclusion that Mr McLeod was fair to Mr Aslam throughoutgiven the circumstances where, at least on one interpretation, Mr McLeod held backthe video evidence in the course of his initial questioning of Mr Aslam. If there wasan element of unfairness in the procedure adopted, it is entirely possible, given thatthe video had earlier been shown to Mr Froggatt, that the Employment Courtconsidered that s 103A(5) applied even though the Court did not refer to it.[28] Section 103A(5) provides:103A Test of justification(5) The Authority or the court must not determine a dismissal or an actionto be unjustifiable under this section solely because of defects in theprocess followed by the employer if the defects were—(a) minor; and(b) did not result in the employee being treated unfairly.[29] Viewing the matter with the most favourable complexion from Mr Aslam'spoint of view, we consider these circumstances give rise to a question of lawconcerning the consideration by the Employment Court of whether, in the particularcircumstances, the employer had appropriately raised with the employee the concernsthat the employer had before dismissing the employee.[30] However we agree with Mr Worthy's submission that the dispute is confinedto the parties and has no wider relevance to the general public or to employersgenerally. It is not a matter which satisfies the test in s 214(3) so as to warrant anappeal to this Court.11Alleged pre-determination of serious misconduct[31] Mr Aslam's contention relies on the fact that, in a letter of 22 July 2016 invitinghim to a disciplinary meeting, Mr McLeod stated that he had concluded thatMr Aslam's actions constituted serious misconduct. Mr Pidgeon submits that anemployer must keep an open mind during the investigation but the letter was clearevidence that Mr McLeod had reached a decision prior to Mr Aslam being given anopportunity to respond to the allegations at the disciplinary hearing.[32] On this issue the Employment Court observed that Mr McLeod gave evidencethat he had not reached a firm view pending the meeting with Mr Aslam.12The formation of a preliminary view is an inevitable feature of the investigationprocess. Indeed cl 47.9 provides that an investigation meeting will be arranged ifthe employer believes the incident was one of serious misconduct.13[33] On this issue we do not consider that any question of law arises.Alleged failure to adequately investigate conflicting versions of events[34] Mr Pidgeon submitted that there were significant discrepancies between thepassenger's and Mr Aslam's version of events: specifically Mr Aslam did not agreethat he had touched the passenger or used swear words. On this issue we agree withthe respondent's submission that there was no error in the Employment Court's overallconclusion that the investigation was fair. Transportation Auckland had available to itnot only the written record of the telephone complaint but the further written account11 At [1] above.12 Aslam v Transportation Auckland Corporation Ltd, above n 1, at [30]. The Authority's decisionnoted that at its investigation meeting Mr McLeod said there had been a typing error, that he hadnot decided there had been serious misconduct at that time but had decided there may have beenserious misconduct.13 At [5] above.of the incident it requested,14 together with the video which the Court took into accountin the manner noted at [16] above.[35] With reference to the proposition that Transportation Auckland should havecanvassed for witnesses to the incident, the respondent notes that this was not an issueraised by Mr Aslam at the time of the investigation or in the Employment Court.No issue of law arises in the circumstances.Result[36] The application for leave to appeal is declined.[37] The applicant must pay the respondent costs for a standard application on aband A basis and usual disbursements.Solicitors:Integritas Law Firm, Auckland for ApplicantKiely Thompson Caisley, Auckland for Respondent14 At [7] above.