The case of the cow and the Judge
It is common to hear employers say that when it comes to dismissing staff the law is stacked against them and they need to be a bloody lawyer just to get things right. Judges pronounce that it is not for them to determine whether they would have sacked the employee. Their job is to determine whether in all the circumstances a fair and reasonable employer could have dismissed the employee. They assure employers that when looking at the employer’s process, they will not examine it minutely to see if they can find some minor fault. However, Judges are human and at times they leave employers feeling they could not resist the temptation to find fault. Mr Fellowes, Director of Waterford Holdings Ltd that operates a farm in Motueka/Takaka region may well have been left feeling that both the Employment Relations Authority and the Employment Court got it wrong when declaring that while he had grounds to sack the employee, Mr Morunga, for animal cruelty the dismissal was procedurally unfair.
What did Mr Fellowes do wrong? Mr Fellowes got most of it right. He had bumped into a dairy technician who had previously been on the farm. The technician told him he had witnessed a farm worker commit an act of animal cruelty on one of the cows. Allegedly the worker had chased a cow on his motorbike towards a cowshed. After the cow went into the exit race he jammed her in with a heavy gate and then proceeded to kick, yell and scream at her. At the time he observed this, the technician was with the other farm worker in the cow shed. Mr Fellowes mentioned this to a neighbour who told him that during the calving season another neighbour had seen on two occasions a farm worker on a motor bike driving it into the legs of a cow. Mr Fellowes obtained written statements from both the technician and the neighbour. Neither named Mr Morunga. So far Mr Fellowes had done nothing wrong.
Mr Fellowes got advice and had a letter drafted for him giving notice to Mr Morunga that they had received complaints that “have been formally put to [him] in writing”. The letter described in detail the content of the complaints and identified the complainants. Mr Morunga was advised that the incidents if proven involve breaches of the animal welfare guidelines and the employment agreement and would constitute serious misconduct and could result in disciplinary action up to and including instant dismissal. He was told of the time of a meeting he was expected to attend and he was advised to bring either a support person or representative. This letter was text book stuff, but the complainants’ letters were not attached.
Mr Morunga was furious when he read the letter. He declared the neighbour/complainant did not know him and so he wanted to know how she could identify him. He got so angry and that the Police were called and he was trespassed.
Mr Morunga then approached the neighbour who according to Mr Morunga had said she had not made a complaint against him but rather she had concerns that a farm worker had hit a cow.
At the disciplinary meeting Mr Morunga told Mr Fellowes what the neighbour had said. Based on this response Mr Fellowes decided not to take action against Mr Morunga because he could not clearly substantiate the identity of the farm worker. This was the right decision with Mr Morunga having been heard and treated fairly.
After the disciplinary meeting the other farm worker was approached by Mr Fellowes’ advisor to see whether he could cast any light on the cow-kicking incident. He confirmed in writing that he witnessed it and explained he had not said anything at the time because of an earlier incident which left him fearing Mr Morunga would hurt him and his family.
Mr Fellowes’ advisor then rang Mr Morunga’s support person and advised him that the other farm worker had witnessed the cow-kicking incident. He asked whether they had any issues with the process: The support person replied that he did not. He told the support person that Mr Morunga had a further 24 hours to consider the information and respond before a decision was made. Mr Morunga “made no further substantive comment”. His only response was “an expletive”.
Again you might ask, what did Mr Fellowes do wrong? Under the Employment Relations Act 2000 Mr Fellowes was required to provide to Mr Morunga access to the written complaints. The Court and the Authority concluded that the process was not fair because he had not done so. The Authority concluded that had Mr Morunga received the complaints he may well have been persuaded not to deny the cow-kicking incident. This could have influenced the employer’s decision to dismiss him because his denial had been a major factor in Mr Fellowes’ decision.
The Court concluded that “having regard to the relationship difficulties, it was inherently unlikely Mr Morunga would have accepted fault had the written statements been provided to him. Even at the Authority he persisted in his denial that he was the perpetrator. I also find it is more likely than not that WHL would have considered dismissal as being appropriate in all the circumstances even if Mr Morunga belatedly accepted that he was the perpetrator. Mr Morunga behaved in a very aggressive way when confronted with WHL’s concerns, and against the background of inappropriate conduct dismissal was the most likely outcome in the end….I find that the ultimate outcome would not have been any different had the statements in question been provided.”
I suspect many employers would say the Authority and the Court got it wrong: They are equating “providing access to the documents” as synonymous with “giving the documents to”. Mr Morunga knew there were written statements and had been given information about them. He was an active particpant in the process and had a support person. He could have asked to see them but didn’t. He approached one of the complainants. He knew that she had not identified him by name. He could have approached the other complainant but didn’t. He could have asked to see the other written complaint if only to check that he had been named. There was no evidence that Mr Fellowes had not provided access to the documents.
The twist in the tale is this. After concluding that Mr Morunga’s dismissal in a procedural sense was unjustified the Court was satisfied that Mr Morunga’s misconduct when considered in context was “so egregious” (outstandingly bad) as to lead to a conclusion that he should get nothing and ordered him to pay WHL $1,750.00 as a contribution towards their legal costs. So why was it not obvious to the Authority that Mr Morunga should receive nothing for his misconduct rather than have his remedies reduced by 50 per cent? Who knows!
Click here to read the full decision
Published on Tuesday, May 24th, 2016, under Blog