Commissioner of Police v CDW HC Auckland CIV 2011-485-544

[2011] NZHC 457

THE NAME OF THE POLICE OFFICER INVOLVED IS SUPPRESSED.

SEE PARAGRAPHS [33] TO [35] BELOW.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2011-485-544

IN THE MATTER OF     THE POLICING ACT 2008

BETWEEN  THE COMMISSIONER OF POLICE Applicant

ANDC D W Respondent

AND  D PATTEN

Second Respondent

Hearing:         13 April 2011

Counsel:         A Russell for Applicant

R Harley for Respondent
No Appearance for Second Respondent

Judgment:      6 May 2011

JUDGMENT OF SIMON FRANCE J

Background

[1]      The Policing Act 2008 came into force in 2008.   In terms of employment relations  it  represented  a fundamental  change.    Distinctions  between  sworn  and non-sworn employees were abolished, and the Employment Relations Act 2000 was

made applicable.[1]

THE COMMISSIONER OF POLICE V C D W HC WN CIV 2011-485-544 6 May 2011

[1] Subject to some exceptions which do not arise here.

[2] The present case concerns a disciplinary inquiry into the actions of a police officer, CDW. Under the old regime, legislation in the form of the Police Regulations 1992 provided a detailed code for such investigations. Those rules are gone, and the matter is now left to be governed by agreements between the Commissioner as employer and his employees, subject of course to any rules contained in the Employment Relations Act 2000.

[3]      CDW is part of a collective agreement for constabulary employees.   That agreement calls for there to be a Code of Conduct which:

places obligations and rights on the employee and employer that shall be observed at all times.

The Code of Conduct shall form part of the employment relationship.

[4]      The relevant section of the Code of Conduct then sets out various principles that are to be followed when dealing with disciplinary matters.   Relevant among those principles are:

(d)       Before any substantive disciplinary action is taken, an appropriate investigation is to be undertaken by the employer.

...

(k)       An employee aggrieved by any action taken by the Commissioner, or his/her representative, may pursue the matter as an Employment Relationship Problem under the procedure of the Employment Relationship Act 2000.

[5]      An allegation was made against CDW concerning his record keeping on a staff matter.  It was essentially alleged he provided incorrect information and falsely altered a document.  The allegation was classified as serious misconduct, which has the capacity to lead to immediate termination of employment.

[6]      The Commissioner was throughout represented by a delegate, the Human Resources Manager. As required by the Code, an investigation was undertaken.  The Commissioner appointed a Wellington barrister, the second respondent Mr Patten, to inquire into it.   In doing this the Commissioner was following a practice that had been established under the former rules.  Mr Patten held a hearing.  At the hearing

were CDW and his legal representative, and two members of the Police Human

Resources Team.  CDW answered questions from Mr Patten during the inquiry.

[7]      Mr Patten reported.  He concluded that CDW had been guilty of breaches of the Code of Conduct; he assessed the breaches as serious misconduct in the mid to high range.

[8]      Consequent upon receipt of the report, the Commissioner has accepted the findings and issued a preliminary letter of dismissal.   CDW has an opportunity to reply. That is where matters stand.

Judicial review proceedings

[9] When Mr Patten initially reported, he said in the report that he had been appointed under Regulation 7E(6)(a) of the Police Regulations 1992. He also said the report itself was issued under Part 1A of the same Regulations. Both these statements are incorrect. The Regulations had by then been repealed, and his letter of appointment from the Commissioner does not refer to them.

[10]     When the error was pointed out by counsel for CDW, the report was reissued without any references to the Regulations.   Thus, for example, where the original version identified the source of the obligation to comply with natural justice as Regulation 7G(2), the revised version acknowledged the same obligation but did not attribute it to any source.  Other similar changes were made.

[11]     CDW issued judicial review proceedings.  The relief sought is declarations that:

(a)       Mr Patten’s findings are invalid;

(b)      the Commissioner’s preliminary decision is invalid;

(c)       the Commissioner must reconsider and redetermine allegations made against CDW.

[12] The basis for these declarations would be that Mr Patten’s mistaken belief he was acting under the Police Regulations 1992 constituted an error of law that rendered his findings unlawful. The Commissioner’s reliance on the report was consequently tainted.

Strike out

[13]     The Commissioner has applied to strike the proceedings out on the basis that this Court does not have jurisdiction.   The dispute is an employment relationship problem within the meaning of s 5 of the Employment Relations Act 2000.  As such, the Employment Relations Authority and the Employment Court have exclusive jurisdiction.

Respondent’s submissions

[14]     On its face the Commissioner’s application seems plainly right.  Sections 161 and 194A of the Act together confer exclusive jurisdiction on the bodies already referred to, and rule out judicial review whether or not the decision underlying the employment relationship problem is a statutory power of decision.

[15]     I turn, therefore, to outline the respondent’s case for why he is able to bring

these proceedings.

[16]     CDW submits the challenge he makes under these proceedings is not an employment relationship problem, because that term:

does not include the plaintiff’s judicial review of the findings of the second

defendant on the ground of illegality.

[17]     Second, s 194A (which rules out judicial review) applies only to the decisions of the employer.   It is submitted that Mr Patten was not CDW’s employer so the section’s prohibition is inapplicable.

[18]     Third, it is submitted that the Commissioner filed a notice of objection to interim orders.  In so doing he submitted to the jurisdiction of the Court and cannot now bring a jurisdictional challenge.

Decision

[19]     There is no doubt that the dispute between the parties is an employment relationship problem.  This is both because it comes within the Act’s definition of employment relationship problem, and because the Code of Conduct and the collective bargaining agreement under which Mr Patten’s hearing was conducted both say it is.

[20]     The Act defines an employment relationship problem as including:

a personal grievance, a dispute, any other problem relating to or arising out of an employment relationship.

[21]     Section 161 of the Act also provides assistance.   It says the Employment Relations Authority has exclusive jurisdiction to make determinations about employment relationship problems generally.   It then gives examples of some situations that are caught by this, including:

(a)       matters relating to the breach of an employment agreement; (b)         personal grievances.

[22]     The first of these options is exactly on point.  What is alleged is a breach of the  Code  of  Conduct.    That  Code  is  provided  for  by the  collective  bargaining agreement, is signed up to by both the employer and employee, and is said by the agreement to be part of the “employment relationship”.

[23]     Further, the collective agreement then confirms that an employee who is unhappy with actions taken by the Commissioner under the Code,

may pursue the matter as an employment relationship problem under the procedures of the Employment Relations Act 2000.

[24]     CDW relied on BDM Grange v Parker.[2]  That case was considering whether allegations that an employee had breached director’s duties, had committed a breach of confidence and had conspired to injure the employer were properly bought in the High Court or were an employment relationship problem.  The Court held the important issue was whether the claims arose out of the employment relationship, or alternatively whether it could be said the employment relationship was just part of the background context.

[2] BDM Grange v Parker [2006] 1 NZLR 353 (HC).

[25]     Likewise, in Pain Management Systems (NZ) Ltd v McCallum Panckhurst J

observed:[3]

It is important to distinguish between a claim which may have its origins in an employment relationship on the one hand, and a claim the essence of which is related to or arises from the employment relationship of the parties on the other.

[3] Pain Management Systems (NZ) Ltd v McCallum HC Christchurch CP 72/01, 14 August 2001 per Panckhurst J

[26]     On which side of the line this case falls is clear.  The allegation is misconduct as an employee in the course of employment.   It concerns internal documents and alleges they are deliberately misleading.   It is totally within the employment relationship.  The relief sought, unlike these cases where there were tortious claims, is for a further inquiry by the employer into the employee’s conduct.

[27]     The requirements of the Act are not sidestepped just by giving a label such as illegality to the challenge.  It does not change the nature of the challenge which is to the process followed by the employer in deciding that the employee was guilty of misconduct.   The adequacy of that process falls squarely within the Employment

Authority’s jurisdiction.

.

[28]     The next point raised by CDW is that Mr Patten was not CDW’s employer so s 194A   is   inapplicable.      However,   Mr Patten   was   clearly   acting   as   the Commissioner’s agent under the Code of Conduct.  CDW took part in the inquiry, and  there can  be no  suggestion  that  it  was  a process  that  was  being  somehow conducted by an outside agency independent of the employer/employee relationship. The Code of Conduct agreed between the parties requires a full investigation.  The Commissioner  chose  to  use  an  independent  barrister  to  conduct  this  and  the employee (understandably) agreed.  That the barrister brings independence does not

mean he is not acting as the employer’s agent.[4]

[4] In Lamb v Commissioner of Police [2011] NZERA Auckland 52 the Authority referred to it being a requirement of the Code that a disciplinary hearing is to be run by one of a panel of experienced external employment practitioners. I cannot find that requirement in the Code provided to me, but its existence would strengthen the conclusion that s 194A is not avoided because the Commissioner used assistance to conduct the inquiry.

[29]     In  Creedy  v  Commissioner  of  Police, the Supreme Court held that the equivalent disciplinary hearing conducted under the former Police Regulations was an administrative procedure carried out on behalf of the Commissioner in order to assist the Commissioner as employer.[5]    I  see  no  basis  to  regard  the  current non-statutory practice differently.

[5] Creedy v Commissioner of Police [2008] 3 NZLR 7 (SC) at [20].

[30]     The third point raised by the respondent was that the Commissioner had subjected himself to jurisdiction.  The point must fail in that if, as I have held, the statute  removes  jurisdiction,  it  is  not  open  to  the  parties  to  choose  otherwise. Second, it is factually flawed.   The Commissioner filed a Notice of Appearance under protest to jurisdiction on 29 March 2011.  This was filed at the same time as the opposition to interim orders.  Thereafter the Commissioner properly brought the strike out application in order to make good on the claim of no jurisdiction.

Conclusion

[31]     The strike out application is granted.  I hold that the subject matter concerns an employment relationship problem and comes within the exclusive jurisdiction of

the Employment Court and Employment Authority.

[32]     Counsel may file memoranda if agreement cannot be reached on costs.

Name Suppression

[33]     There is an application by the media to search the Court files. At the hearing I heard from counsel on this and proffered an opportunity to Ms Murdoch of the Dominion Post to be heard.

[34]     I have decided that name suppression should apply until the matter is before the Employment Authority.  Thereupon, suppression or otherwise should be decided by the Authority in accordance with its normal rules.  These proceedings should not have been filed in this Court.  I make these orders only to preserve the situation so that the normal rules applicable to the proper jurisdiction can be applied.

[35]     Accordingly, in my judgment I have removed CDW’s name until resolution of the Authority proceedings.  I also order that the file may not be searched without leave of the Court.  These orders can be revisited on application if and when they become  inconsistent  with  any  decision  of  the  Employment  Authority  and/or

Employment Court.

Simon France J

Solicitors:

A Russell, Crown Law, PO Box 2858, Wellington 6140, email:  [email protected]

R Harley, Barrister, PO Box 5241, Wellington 6145, email:  [email protected]