WAITEMATA DISTRICT HEALTH BOARD V HEMI TIMU CA CA322/07

WAITEMATA DISTRICT HEALTH BOARD V HEMI TIMU CA CA322/07 20 September 2007IN THE COURT OF APPEAL OF NEW ZEALAND CA322/07 [2007] NZCA 413BETWEEN WAITEMATA DISTRICT HEALTH BOARD Applicant AND HEMI TIMU Respondent Hearing: 17 September 2007 Court: Hammond, Robertson and Arnold JJ Counsel: A Russell for Applicant G Pollak for Respondent Judgment: 20 September 2007 at 11 amJUDGMENT OF THE COURT A The application for leave to appeal is declined. B The respondent will have costs of $1,500.00 together with usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Robertson J) [1] Waitemata District Health Board (WDHB) seeks leave under s 214(3) of the Employment Relations Act 2000 to appeal against a decision of the Employment Court (EC) finding that an investigation carried out by WDHB was neither full norfair and therefore WDHB had not discharged the burden of establishing that its dismissal of Mr Timu was justifiable. [2] The proposed questions of law are: (a) whether the applicant could not rely upon obscene or abusive language which could cause offence as serious misconduct because it is not so described in the policy document of the applicant; (b) whether the applicant's decision-maker was in breach of the rules of natural justice and thereby failed to conduct a fair or reasonable enquiry when deciding on disputed questions of fact; (c) if, and to what extent, the EC usurped the functions of the applicant and its decision-maker upon an investigation that satisfied natural justice and the requirements of the case by substituting its judgment for that of the applicant; and (d) whether evidence of an earlier incident was relevant to the remedies claimed by the respondent. [3] We are not satisfied that any of these are questions of law requiring the involvement of this Court.Background[4] Mr Timu was a staff nurse employed by WDHB. He was dismissed by the General Manager for Mental Health for WDHB on the basis that he had physically assaulted and verbally abused a patient. [5] In a determination of 15 September 2005 AA353-05, the Employment Relations Authority (ERA) concluded that his dismissal was justifiable.[6] The EC, after a hearing in July 2006, reversed that finding in a reserved judgment of June 2007 (AC 34/07). This was on the basis that there had not been a proper application of the principles summarised by this Court in W&H Newspapers v Oram [2000] 2 ERNZ 448 at [31]-[32]:[31] While in a breach of contract case an employee alleging wrongful dismissal must establish to the satisfaction of the Court that the employer has breached the contract, in a personal grievance, once the employee has established a prima facie case of unjustifiable dismissal, the onus is on the employer to justify the dismissal. The Court has to be satisfied that the decision to dismiss was one which a reasonable and fair employer could have taken. Bearing in mind that there may be more than one correct response open to a fair and reasonable employer, we prefer to express this in terms of "could" rather than "would", used in the formulation expressed in the second BP Oil case ([1992] 3 ERNZ 483 (CA) at p 487). [32] The burden on the employer is not that of proving to the Court the employee's serious misconduct, but of showing that a full and fair investigation disclosed conduct capable of being regarded as serious misconduct. Focus of the case[7] This Court has a limited jurisdiction to hear appeals from the EC. Leave to appeal can only be granted for questions of law where the issue is of general or public importance: Employment Relations Act, s 214(3). Factual assessments are for Judges of the EC and it is not open for this Court to interfere with such findings of fact. [8] There are two fundamental issues about which the applicant is concerned. The first was the process by which the applicant determined the dismissal, particularly the degree to which the General Manager for Mental Health was directly and personally involved in the necessary inquiry. The second was the applicable standard of misconduct in this case.(i) The process concern[9] Mr Russell accepted that the EC correctly articulated the principles which should be applied when assessing the manner in which the inquiry was undertaken asto the conduct complained of. He submitted that, in its application to the facts of this case, the EC extended the ambit of what constitutes a full, fair and reasonable inquiry when an employer is confronted with different versions of events and it is necessary to reach a view about fundamental facts. Counsel submitted that, in his approach, the Judge was posing a test different to that laid down by this Court inAirline Stewards and Hostesses of New Zealand Industrial Union of Workers v Air New Zealand Ltd [1990] NZLR 549 and minimised the ability to delegate parts of the process. [10] We are not satisfied that there was any deviation from established principle. [11] When making an assessment as to whether the requirements for proper dismissal have been met, the Court will always have to assess and analyse what has occurred. That is not usurping the function of WDHB. The Judge did not substitute his view for that of the employer, but held that the process which was undertaken, when there was conflict as to the true factual position, was not full and fair. The Judge did not lay down some new principle or additional requirement. He merely applied established principle to the particular circumstances of this case. [12] We accept that the issue for the EC was whether the approach adopted by the employer was reasonable. Determining what had occurred, particularly whether there may have been personal animosity with regard to one of the persons reporting and/or a conspiracy of silence to support a fellow worker, was for the WDHB. [13] We are satisfied that Judge Couch did not substitute his view as to what should occur for an assessment of the procedure adopted. His approach did not extend beyond a legitimate consideration of whether it was a full and fair process. [14] It is to misread the judgment as a whole to suggest that it introduces a requirement that there should be a full adversarial hearing about every issue in dispute.(ii) The standard of conduct[15] The applicant contended that there was also error in the manner of classifying degrees of conduct by reference to the applicable policy document, and the relevance of earlier incidents. [16] We are sensitive to the particular concern Mr Russell had with regard to comments of the Judge when he said:[121] Mr Russell submitted that, even if there was no finding of assault, Mr Timu's conduct could properly be described as serious misconduct justifying dismissal. In support of this, he referred me to the decision of Judge Palmer in Reed v Smith unreported, 20 December 1996, CEC 40/96 as authority for the proposition that abusive language can amount to serious misconduct. While I do not doubt the correctness of the decision in that case, Mr Russell's submission overlooks the provision in the Board's disciplinary policy defining "irresponsible or unacceptable behaviour including using obscene or abusive language which could cause offence" as misconduct generally and the absence of any similar offence in the list of behaviour characterised by serious misconduct. The Board having instituted and promulgated such a policy, it must be reflected in the way I view Mr Timu's actions as one of the Board's employees. [122] I find that, although Mr Timu's conduct was clearly unacceptable and unprofessional, it was not capable of being regarded as serious misconduct justifying dismissal.[17] If the Judge was suggesting that obscene or abusive language was never capable of being regarded as serious misconduct justifying dismissal in an absolute and unequivocal sense he would be in error. The provisions in the manual to which the Judge was referring make it clear that the respective lists are for the purposes of illustration and are not exhaustive. There can never be a pigeonhole approach to assessment of the facts. We suspect the Judge was speaking in the context of the facts of this case, but even if he were not, the point is not one which would meet the statutory test to justify the intervention of this Court. [18] Mr Russell accepted that an earlier incident mentioned in evidence in the EC had not been before the General Manager, but counsel submitted that the EC was in error in not having regard to it when it assessed remedies. In particular, whether this had been properly factored into the contribution of Mr Timu himself to the grievance. Counsel argued that if it was, the contribution of Mr Timu would havebeen so substantial that the EC should have concluded that the dismissal was justified. [19] We are not persuaded that, in this exercise, there is any error of principle. The matter again is an example of the application of non-contentious principle to the facts of the case. [20] The applicant is of the view that the principles were incorrectly applied, and the Judge of the EC was in error in his application of them to the facts of the case. That does not create a question of law.Result[21] The application for leave to appeal is declined. [22] The respondent will have costs of $1,500.00 together with usual disbursements.Solicitors: Martelli McKegg Wells & Cormack, Auckland, for Applicant Garry Pollak & Co, Auckland, for Respondent