Commissioner of Police v Cartwright
[2000] NZCA 225
•2 October 2000
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA10/00 |
| BETWEEN | THE COMMISSIONER OF POLICE |
| Appellant |
| AND | CHRISTOPHER JAMES CARTWRIGHT |
| Respondent |
| Hearing: | 19 September 2000 |
| Coram: | Gault J Blanchard J Tipping J |
| Appearances: | B J Banks and P J Gunn for Appellant P M Muir for Respondent |
| Judgment: | 2 October 2000 |
| JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J |
This appeal relates to the personal grievance claim of a former police officer, Mr Cartwright. He was required by the Commissioner to leave the police under s28C of the Police Act 1958 (a part of the provisions known as the PERF scheme). He accepted that, in accordance with that section, he was unfit for police duty. He therefore did not seek reinstatement. The issue is whether in such circumstances he could bring a personal grievance claim for economic losses alleging earlier mistreatment by his superior officers which brought about his unfitness for duty and so was causative of his (lawful) disengagement. Mr Cartwright ceased to be a member of the police when the Commissioner’s notice, which he did not challenge, expired (s28C(3)). The Commissioner’s position is that he was then prevented from bringing such a personal grievance action by s28C(4):
(4) Where the member takes a personal grievance action under section 87 of this Act in respect of the requirement to leave the Police, the member shall remain a member of the Police until the action is disposed of; but if reinstatement is not ordered, the member shall cease to be a member of the Police on the date on which written notice of the decision disposing of the action is given to the member.
Factual background
Mr Cartwright had been a sworn member of the police since the mid-1970s. In 1993 he was made Sergeant in Charge at Whangamata. In mid-1995 his superior was replaced by Senior Sergeant Millar. According to the findings of the Employment Tribunal, Mr Millar had pre-judged the respondent, forming a negative view of him by talking to others before becoming his superior. As a result, Mr Millar had adopted an “aggressively confrontational” style of management, which was also described as resentful and unyielding. He relieved Mr Cartwright of many of his duties. Mr Cartwright was never given a chance to address Mr Millar’s concerns about him.
Mr Cartwright complained in writing, but his complaint was ignored by those in charge. After another unpleasant incident with Mr Millar, Mr Cartwright went to see his doctor and was diagnosed with clinical depression. He was off work for three and a half months. Upon returning to work, he again complained in writing about Mr Millar to his superiors, but was once more ignored. At a performance appraisal shortly after Mr Cartwright returned to work, Mr Millar rated him in the lowest 2% of police officers in New Zealand. Mr Cartwright went on sick leave immediately thereafter and never returned to work. The Tribunal found that the only motive Mr Millar had in marking the respondent so low was “to turn up the heat. He did so and got the predicable result” (that is, that Mr Cartwright left work again). The compulsory disengagement procedures were subsequently implemented because of Mr Cartwright’s inability to work. On the cessation of his employment as a member of the Police, which counsel for the Commissioner accepts was a dismissal, Mr Cartwright received under the PERF scheme his superannuation entitlements (see ss88A – 88G of the Government Superannuation Fund Act 1956).
In his personal grievance action Mr Cartwright sought compensation for loss of future earnings from the date on which he was required to leave the police force to the date on which he would normally have retired. He also sought compensation for humiliation and distress.
Decision of the Employment Tribunal
In a decision which comprehensively described the events preceding the disengagement, the Employment Tribunal (Mr J W Haslemore) found that Mr Cartwright’s letters of complaint raised serious allegations that should have been responded to. They were not, and this constituted an unjustifiable action which disadvantaged the respondent in his employment. (The Tribunal referred in this connection to s27(1)(b) of the Employment Contracts Act 1991 but in fact it was exercising jurisdiction under s87 of the Police Act and the correct reference should have been to the corresponding provision, which is s87(3)(b).)
But the Tribunal then found that although the relationship with Mr Millar contributed to the respondent’s illness, other factors, such as Mr Cartwright’s insistence on working excessive hours and not taking leave, also contributed. The factors contributing to the illness were operational matters and as such could beset any police officer and cause stress. The Tribunal concluded that Mr Cartwright’s termination from the police force came about through the compulsory disengagement. It was common ground that this was handled correctly. The Tribunal said that as a consequence it had not been asked to make any ruling relating to the cessation of Mr Cartwright’s employment and could not make a finding that he had been unjustifiably dismissed.
On the claim for loss of earnings the Tribunal concluded that while the disadvantage Mr Cartwright suffered did play a part in his illness and subsequent disengagement under the PERF scheme, it was not able to consider such a claim. “Any loss of salary must be considered on the basis of the applicant’s actual termination”.
However, the respondent was awarded the sum of $25,000 for loss of dignity and injury to feelings and humiliation “as a result of the disadvantage he has suffered”. (Again, the Tribunal referred to the Employment Contracts Act (s40(1)(c)(i)) instead of to s94(1)(c)(i) of the Police Act).
Mr Cartwright appealed to the Employment Court against the refusal to award him anything for loss of earnings. The Commissioner of Police accepted liability to pay the sum awarded for humiliation but continued to deny any liability for loss of earnings.
Decision of the Employment Court
The Employment Court embarked upon an extensive survey of the Tribunal’s factual conclusions and in several respects took a somewhat different view. This Court has on several occasions found it necessary to point out the requirements and limitations of the appellate role of the Employment Court under s94 of the Employment Contracts Act (which applies in this case by virtue of s96(2)(c) of the Police Act) and the restrained approach which should be taken to findings of the Tribunal, especially those turning on issues of credibility (Big Save Furniture Ltd v Bridge [1994] 2 ERNZ 507; Samu v Air New Zealand Ltd [1995] 1 ERNZ 636 and Glovers Food Processors Ltd v Leaosavaii [1999] 1 ERNZ 478). But, as it was not submitted to us that the Employment Court has in this case erred in law in this respect, we confine ourselves to repeating that observation.
The Employment Court disagreed with the Tribunal’s finding of fact that the appellant did not cause the respondent’s dismissal. It found that Mr Millar “by his conduct and attitude” caused the appellant to breach the contract of employment with Mr Cartwright. The Court said that Mr Cartwright would never have suffered permanent stress-related disability, nor would he have lost his job with the Police, had it not been for the Commissioner’s serious breaches of the employment contract.
The Employment Court stated that it was not now open to the Commissioner to argue that the Tribunal erred in finding that the respondent was entitled to bring a personal grievance action. This was because the Commissioner had expressly accepted that the Tribunal was correct in fact and law. But the Employment Court stated that, in case it was wrong in this finding, it would go on to address the substantive issue which the Commissioner sought to raise, namely whether s28C(4) prevented a personal grievance action for loss of future earnings in the circumstances of the case.
The Employment Court recognised that the police force has a unique statutory environment, and that if a sworn member of the Police wishes to pursue a claim for unjustified dismissal in respect of a compulsory disengagement, that must be done pursuant to the Police Act. Section 28C(4) required that a sworn member wishing to challenge a compulsory disengagement must remain a sworn member of the Police until the challenge was resolved. Here, however, Mr Cartwright had accepted that he must leave the force and had not remained a sworn member.
The Employment Court found that s28C(4) was a very narrow provision, applying only where reinstatement is sought. It could not mean that sworn members not seeking reinstatement must nevertheless remain members of the Police – especially where, as here, that would cause manifest unfairness. For the respondent to remain a sworn member would, in effect, mean that he would have to remain suspended without pay until the challenge was resolved and would not in the meantime receive his entitlements under the PERF scheme. (The question of the power to suspend without pay was not argued before us and we have not considered that matter.) It had also been argued that if he had remained a sworn member Mr Cartwright might have faced serious reductions in his entitlement to retirement pay because of his age and the delay entailed in resolving the disputed matters. Mr Cartwright was not challenging the requirement to leave the police. What he was challenging was the circumstances leading to that requirement. In that situation the Employment Court found that s28C(4) did not apply and so held that Mr Cartwright could bring a claim of unjustified dismissal.
But, accepting a submission from Ms Muir, the Court also said that, whether the matter was viewed as an unjustified dismissal or an unjustified disadvantage grievance, it would have been open to the Tribunal to have made an award for lost remuneration.
The Court concluded that Mr Cartwright was entitled to an award of reimbursement for the losses he had suffered as a result of the personal grievance regardless of whether it was to be viewed as an unjustified dismissal or as an unjustified disadvantage. The Judge gave the parties the opportunity to negotiate a settlement of all outstanding matters. He allowed the appeal but left undetermined the question of quantum.
A procedural issue
Before moving to the point of importance in this appeal, it is necessary to mention a procedural dispute which counsel agreed should not stand in the way of the disposition of the appeal. It related to the absence of any cross-appeal by the Commissioner to the Employment Court against the finding that a personal grievance could be brought at least so far as there had been an unjustifiable action giving rise to humiliation and injury to feelings. It was suggested for Mr Cartwright that the Commissioner was thereby prevented from arguing that outside s28C(4) there could be no personal grievance claim. Counsel for the Commissioner said, however, that he had been entitled simply to support the material findings of fact and law of the Employment Tribunal without need for the giving of any notice.
We agree. There is no necessary inconsistency between an acceptance of the finding that there had been humiliation and distress caused to Mr Cartwright, and the continuance of the Commissioner’s stand that mistreatment by the superior officers, such as it might be, had not caused the disengagement or any loss of earnings. As the Employment Court had not let this issue deter it from going on to consider the substance of the appeal, nothing really turned upon this point in any event, as Ms Muir conceded for the respondent.
Submissions for appellant
Mr Banks submitted that s28C(4) was a complete bar to the respondent’s claim for loss of earnings arising from unjustifiable dismissal. He pointed out the unique employment regime applicable to sworn police officers, reflecting the nature of the police force as a command service. Among the special provisions are ss28A to 28F, introduced by an amendment in 1985 which also inserted the provisions of the Government Superannuation Fund Act to which reference has been made. These provisions allow police officers who are unable to perform their duties to retire voluntarily or to be retired compulsorily “with dignity”, as Mr Banks put it, and to receive superannuation payments which represent a substantial enhancement of the entitlement payable on normal departure from the Police. Counsel pointed also to s28 which deals with compulsory retirement on medical grounds and contains its own appeal procedure. He used this to support his submission that there are specifically tailored remedies to address various circumstances of departure.
It was submitted that there are three main factors which show that on a disengagement under s28C an unjustified dismissal grievance cannot be pursued otherwise than is envisaged by subs(4). First, he said, where the disengagement is acknowledged to be valid, and there is no move by the sworn member to contest it, there can be no remaining basis to claim that it was unjustified. Secondly, the scheme of the Act is to provide a range of remedies to meet specific situations; and, thirdly, other remedies are available that do not involve claiming unjustified dismissal while at the same time accepting the validity of termination. These remedies, said Mr Banks, include unjustified disadvantage personal grievance claims and the opportunity to bring a breach of contract claim in the general courts (Attorney General v Benge [1997] ERNZ 109). It was suggested that the latter course was one which would have been available to Mr Cartwright.
Conclusions
We do not summarise the submissions for the respondent because we broadly accept the argument advanced by Ms Muir. We begin by noting that although the Statement of Claim refers to unjustified dismissal, it very plainly is based upon the events preceding the disengagement process and has never purported to contest the validity of that process, beginning after Mr Cartwright became unfit, or the actual dismissal. Some of the complexity of the case may have been avoided if the real nature of the claim had not been confused by this misnomer: it has in reality all along been a claim for unjustifiable action. The dismissal itself was justified, but the respondent has been saying that the events preceding it, which caused the disengagement, were not. As noted earlier, the Employment Court appears to have appreciated this reality.
This Court observed in Aoraki Corporation Ltd v McGavin [1998] 3 NZLR 276, 293, that the form of any remedy for a personal grievance must be directed to the particular wrong. The statutory scheme requires the Tribunal and the Employment Court to identify and focus on the nature and scope of the personal grievance which it determines the employee has established. We add that it is well settled that the Tribunal or Court may find that a personal grievance is of a type other than that alleged, as s34 of the Employment Contracts Act confirms for cases falling under that Act.
Contrary to the submissions for the appellant, we find nothing in the Police Act in general or s28C(4) in particular which prevents a former sworn police officer from pursuing a personal grievance action under s87, which Mr Cartwright was doing, alleging a disadvantage by some unjustifiable action by the Commissioner (s87(3)(b)). Section 28C(4) on its plain wording is intended to ensure that someone seeking to contest the justifiability of the dismissal itself must remain a member of the Police until that question is determined. It is understandable that Parliament would not want to see a situation in which, in a command structure, there was a reinstatement after a period during which the person concerned was technically not a member of the Police. But, as Mr Banks accepted, that concern is irrelevant where reinstatement is not sought. We do not read the words “in respect of the requirement to leave the Police” as referring to anything other than the actual disengagement process and the resulting dismissal. A wider interpretation would leave a sworn police officer who had been so badly affected by an unjustifiable action that he could not possibly contest the disengagement, without any ability to bring a claim in respect of economic loss arising from that unjustifiable action.
Mr Banks pointed to the enhanced benefits received by someone who exits the police force under the PERF scheme as a reason for denying a loss of earnings claim. The receipt of those benefits will, however, have to be brought into account in fixing the quantum of compensation under s87(3)(b), as we understand the respondent concedes. But the mere existence of enhanced benefits does not and should not deprive former police officers of the ability to bring claims for such net monetary loss as may be able to be shown to have been caused by an unjustifiable action by the Commissioner.
It is necessary also to mention the suggestion made on behalf of the Commissioner, with some understandable hesitancy, that any loss of earnings by Mr Cartwright must have been caused by the disengagement, not by events preceding the disengagement process, and that therefore such loss arose from a justifiable dismissal. The disengagement was said to be an intervening act. We reject this argument. If, as the Tribunal and the Court have held, the disengagement process was implemented because Mr Cartwright was unfit for duty, then it must be the case that whatever brought about his unfitness was causative of the disengagement and thus of any loss of earnings arising from the dismissal. But, we repeat, that does not mean that a claim for a personal grievance in respect of the preceding events is a claim “in respect of the requirement to leave the police”. It is, rather, a claim for an earlier unjustifiable action which necessitated that requirement.
The appeal is dismissed and the matter remitted to the Employment Court for determination, if necessary, of the remedy for the unjustifiable action. The respondent is awarded costs of $3,000 together with his reasonable disbursements, including travel and accommodation costs of counsel, which are to be fixed by the Registrar if not agreed.
Solicitors
Crown Law Office for Appellant
Simpson Grierson, Auckland for Respondent
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