| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2013] NZERA Christchurch 12 |
| Hearing date | 25 - 29 Jun 2012 |
| Determination date | 23 January 2013 |
| Member | R A Monaghan |
| Representation | J Goldstein ; R Gold, R de Groot |
| Parties | Q v The Commissioner of Police |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably disadvantaged by respondent’s written warning and being kept on restricted duties after warning issued – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed applicant justifiably warned for conduct towards acting senior sergeant (“T”) and justifiably dismissed for use of excessive force on member of public (“V”) – Authority found flaws in respondent’s investigation did not render decision to issue warning unsafe – Found lack of clarity over which of applicant’s behaviour considered insubordinate but applicant’s explanations for conduct would have been the same if applicant in position to say why conduct not insubordination – Found superintendent (“C”) entitled to consider applicant’s explanation for removing items from T’s office unacceptable, applicant caused T distress and applicant’s actions insubordinate – Found fair and reasonable employer would have issued warning – Found no unfairness in continuing restricted duties notice after applicant issued with written warning – No unjustified disadvantage – Found no unfairness to applicant in panel member’s (“P”) failure to interview witnesses in person – Found P should have been provided with unredacted documents by respondent but going too far to say P likely to make different findings – Found delay between respondent receiving complaint and notifying applicant undesirable and deprived applicant of opportunity to obtain and rely on video footage of incident with V – Found procedural flaws did not cause unfairness to applicant – Found fair and reasonable employer could conclude applicant used excessive force – Dismissal justified – Senior constable |
| Abstract | Applicant employed by respondent as senior constable. Applicant claimed unjustifiably disadvantaged by respondent’s written warning and being kept on restricted duties after warning issued. Applicant claimed unjustifiably dismissed by respondent. Applicant attended meeting to discuss draft policy. Applicant believed acting senior sergeant (“T”) not acting in accordance with policy prohibiting personal paraphernalia in office, collected items from T’s office, and presented bag of items and concerns about T during meeting. Applicant invited subsequently to respond to allegations applicant removed T’s property without permission or reasonable excuse, behaved in manner causing T unreasonable distress and acted in insubordinate manner towards T. Respondent manager (“M”) noted applicant’s admission did not have permission to remove property and claim obligated by terms of draft policy to remove items. M concluded applicant’s conduct breached code of conduct. Disciplinary investigation commenced by superintendent (“C”) who concluded unacceptable for officer to take items from supervisor’s office without permission, considered applicant’s concerns should have been raised in different avenue and rejected applicant’s claim could speak freely as meeting conducted without regard to rank. Applicant issued with written warning. Applicant placed on restricted duties during investigation into T’s complaints and claimed should have been permitted to return to full duties after warning issued. While respondent investigating T’s complaint, complaint received from member of public (“V”) who had taken applicant’s hat from head in nightclub while intoxicated. V claimed applicant placed V in ‘headlock’, dragged V into hallway and yelled at V, and dragged V outside. M’s investigation concluded matter potentially one of serious misconduct. Panel member (“P”) concluded V not attempting to escape from applicant, excessive to apply such a hold to V, applicant did not slam V against wall but not necessary to hold V against wall, V not resisting when escorted outside nightclub meaning continued restraint unnecessary and applicant sought to humiliate and intimidate V. Applicant claimed V’s behaviour unruly and applicant used approved technique to restrain V and eject V from nightclub. After recommendation from C, respondent manager (“B”) decided applicant to be dismissed. Applicant dismissed.;AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Authority ordered non-publication of name of applicant, applicant’s wife, various witnesses and non-publication of evidence and pleadings. M suitably independent and open to respondent to consider allegation of insubordination as part of T’s complaint. M’s failure to interview other attendees at meeting not significant procedural flaw. While some matters not addressed in M’s report, C aware of and addressed matters and flaws in investigation did not render decision to issue warning unsafe. Lack of clarity over which of applicant’s behaviour considered insubordinate but applicant provided explanations for conduct in question and explanations would have been the same if applicant in position to explain why conduct not insubordination. No evidence of pre-determination. Time taken to complete procedure not desirable but delay explained adequately overall. C entitled to consider applicant’s explanation for removing items from T’s office unacceptable. Respondent entitled to conclude applicant caused T distress and to consider applicant’s actions insubordinate. Applicant’s conduct towards T so clearly unacceptable fair and reasonable employer would have issued warning. Varied notice of restricted duties concerned disciplinary process involving V’s complaint and no unfairness in continuing restricted duties notice after applicant issued with written warning. No unjustified disadvantage. M not obliged to interview witnesses in person and gathered sufficient material to conclude possibility of serious misconduct. P was independent. No unfairness to applicant in P not interviewing witnesses in person as unlikely would have altered outcome. P’s failure to refer to account of certain witness in report did not mean P did not consider account or P’s findings undermined. P should have been provided with unredacted documents by respondent but going too far to say P would have been likely to make different findings. Applicant’s attitude and frame of mind relevant to applicant’s decisions about use of force and P’s findings applicant angry and V humiliated not outside terms of reference. Even if V was arrested, mere fact of arrest would not justify level of force used. No obligation to raise extra matters referred to by C at time they occurred and applicant had opportunity to respond in context of B’s decision. Applicant had reasonable opportunity to respond to allegations and overall B addressed required matters. Delay between respondent receiving complaint and notifying applicant undesirable and applicant prejudiced by not having opportunity to obtain and rely on video footage of incident with V. Further delays undesirable but applicant not prejudiced. No disparity of treatment between applicant and other officer. Procedural flaws did not cause unfairness to applicant. Fair and reasonable employer could conclude applicant used excessive force. Applicant’s attitude to V disparaging and belittling, applicant showed poor judgment, did not acknowledge V apologising and unable to see actions heavy handed. Dismissal justified. |
| Result | Applications dismissed; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s103A;ERA s114;ERA Second Schedule cl10;Official Information Act 1982;Police Act 1958 s12 |
| Cases Cited | Allen v C3 Ltd [2012] NZEmpC 124;Chief Executive of the Department of Inland Revenue v Buchanan (No 2) [2005] ERNZ 767;Coffey v The Christchurch Press, a Division of Fairfax New Zealand Ltd [2008] ERNZ 385;Ioane v Waitakere City Council [2003] 1 ERNZ 104;Samu v Air New Zealand Ltd [1995] 1 ERNZ 636;Timu v Waitemata District Health Board [2007] ERNZ 419 |
| Number of Pages | 43 |
| PDF File Link: | 2013_NZERA_Christchurch_12.pdf [pdf 407 KB] |