Harris v Chief Executive, Department of Corrections
[2000] NZCA 320
•9 November 2000
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA81/00 |
| BETWEEN | SHEREE ANGELA HARRIS |
| First Appellant |
| AND | CATHERINE JUNE SKINNER |
| Second Appellant |
| AND | CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS |
| Respondent |
| Hearing: | 24 August 2000 |
| Coram: | Thomas J Blanchard J Tipping J |
| Appearances: | M I Sewell and R G Glover for Appellants C P Chauvel and A L Russell for Respondent |
| Judgment: | 9 November 2000 |
| JUDGMENTS OF THE COURT |
Judgments
Para Nos
Thomas J [1] – [10]
Blanchard and Tipping JJ [11] – [32]
THOMAS J
I have read the draft judgment of Tipping J, which is to become the judgment of the plurality. Although I propose to concur in allowing the appeal and remitting the case back to the Employment Court, I do so with considerable reluctance.
My reluctance stems from the fact I accept that, as at 1998, a serious situation existed at the Paparoa Prison which undoubtedly required a prompt resolution. That resolution will now be further delayed.
It is undeniable that the authorities at Paparoa Prison faced a serious staff problem. The problem involved the security of the prison and the safety and well-being of both staff and prisoners. For that reason it would have been remiss for the Chief Executive not to have done something about it. This he did. He set up an investigative committee to inquire into the problem. The committee recommended that Ms Skinner and Ms Harris be transferred to the Mens Prison which is on the same site and under the same management. The Chief Executive implemented the committee’s recommendation. The appellants, Ms Skinner and Ms Harris, then initiated the present proceeding.
I agree with the plurality that, from the outset, three issues required determination. They were:
· Did the Department of Corrections have the legal power to transfer Ms Skinner and Ms Harris to the Mens Prison?
· Was the inquiry by the investigation committee procedurally fair?
· Was the Chief Executive reasonably justified in acting upon the investigation committee’s report and recommendation?
The Tribunal’s judgment of 141 pages is a prodigious effort. A massive amount of work would have been involved in arriving at and reducing to writing the immense amount of detail evident in the judgment. The work history and numerous individual incidents and grievances are exhaustively examined. In view of the decision the Court has reached, there is no need to consider the Employment Court’s particular concern that the Tribunal wrongly exercised its discretion under s 34 of the Employment Contracts Act 1991 in substituting “disadvantaging grievances” for the allegation of constructive dismissal which had been pleaded, thus depriving the Department of Corrections of recourse to a major defence.
The Employment Court Judge held on appeal that there was clear evidence of a serious incompatibility in the work place, that this incompatibility was largely of Ms Skinner and Ms Harris’ making, and that this state of affairs justified the action taken by the Department. The Judge relied on the established law in this area which has long held that an employer may take appropriate action, even including dismissal, where there is serious incompatibility in the workplace. See Comber v Odyssey House Trust Inc [1992] 3 ERNZ 210, and the cases cited therein at 228. Thus, the Judge regarded the Chief Executive’s decision as an “operational” decision.
In arriving at this conclusion the Employment Court Judge followed the format of addressing sequentially the submissions of the Department, which was then the appellant. Having regard to the different approaches taken by the Tribunal and the Judge, it is not surprising that the latter did not undertake an exhaustive examination of all the incidents and grievances which had been dealt with in great detail by the Tribunal. I would not have done so myself. Criticism of the Judge to the effect that he failed properly to address the reasoning of the Tribunal is not called for. In the circumstances, the Judge’s critical task, as in this Court, was to revert to the essential issues. With the exception of the question whether the Department of Corrections has the legal power to transfer Ms Skinner and Ms Harris to the Mens Prison, which I will touch upon shortly, the Judge substantially addressed the key issues under the headings provided in the submissions made on behalf of the Department. In respect of these issues, it is difficult to fault the Judge’s conclusions.
The issue which emerged in argument in this Court, and which caused considerable difficulty, was whether the Department of Corrections had the legal power to transfer Ms Skinner and Ms Harris to the Mens Prison. But I do not hold the Employment Court Judge hugely responsible for failing to fully address this point. The issue does not seem to have been to the forefront of either counsel’s submissions in the Employment Court. At best, as Tipping J has observed, the issue was raised “obliquely” in the submission advanced by counsel for Ms Skinner and Ms Harris. Even before this Court, when pressed by the members of the Court to identify the legal source of the Department’s power to transfer Ms Skinner and Ms Harris to the Mens Prison, counsel persisted in fusing the question whether the Department “could” transfer them to the Mens Prison with the question whether it “should” transfer them.
There may be good reason for counsel’s reticence. For myself, I would wish to avoid any suggestion of even a tentative view as to whether or not the Department has the legal power to transfer Ms Skinner and Ms Harris to the Mens Prison. It may well be that collective contracts subsequent to Ms Skinner and Ms Harris’ contracts of employment put the question beyond doubt. This Court just does not know. Nor does it know the situation in the Paparoa Prison, or whether the employment of women in the Mens Prison is appropriate or not or, if women are employed in the Mens Prison, what duties are allocated to them. I therefore believe that the legal question can be remitted to the Employment Court without any view being expressed, even tentatively, one way or another.
But for the fact that the question of the Department’s legal power to transfer Ms Skinner and Ms Harris to the Mens Prison is to be referred back to the Employment Court I would not remit the other issues. It is conceivable, however, that the determination of the legal issue may, if the power to transfer exists, have a bearing on the other issues. For completeness, therefore, I agree that all issues may be referred back to the Employment Court for reconsideration.
BLANCHARD AND TIPPING JJ (DELIVERED BY TIPPING J)
Introduction
In 1997 the appellants, Miss Harris and Mrs Skinner were senior prison officers in the employ of the respondent, the Chief Executive of the Department of Corrections. They were both employed in the Christchurch Women's Prison at Paparua. Miss Harris had been working there since July 1986 and Mrs Skinner since August 1980. In November 1997 the regional manager (Mr Monk) directed that they be transferred to work in the Christchurch Men's Prison which shares the same site as the Women's Prison. The appellants did not agree with their transfer and commenced personal grievance proceedings alleging that the transfer was contractually unlawful, that it had followed from an internal investigation which was procedurally and substantively flawed, and that it was of a disciplinary nature when the investigation which preceded the transfer had found no fault or misconduct on their part. In their statement of claim the appellants contended that by reason of the transfer they had either (i) been constructively dismissed and that such dismissal was unjustifiable (s27(1)(a) of the Employment Contracts Act 1991); or (ii) that they had been disadvantaged in their employment by reason of their employer's unjustifiable action (s27(1)(b)). They each claimed reinstatement to the Christchurch Women's Prison and various money awards.
The hearing by the Employment Tribunal (Mr D S Miller) commenced on 6 April 1998 and was of what the Employment Court (Judge Palmer) later described as "a significantly discontinuous character". It ended on 11 August 1998. The Tribunal took some 8 months to prepare his decision which was delivered on 23 March 1999. The decision covered the issues and individual differences between the parties in very considerable detail. It ran to 143 pages. The Tribunal's decision was in favour of the appellants on the basis of unjustifiable disadvantage. Miss Harris was reinstated; Mrs Skinner was not. Both were awarded money sums.
The respondent appealed to the Employment Court. The appeal was heard over two days in October 1999. Judge Palmer found himself unable, by reason of other judicial commitments, to give judgment until April 2000. He wholly allowed the appeal in a 74 page judgment containing liberal adjectival and adverbial adornment.
From this judgment Miss Harris and Mrs Skinner have appealed to this Court alleging that the Judge made several material errors of law. An unusual early feature of the Court's decision is that the Judge criticised the Tribunal quite severely on the basis that the case was really too difficult and complicated for the Tribunal. The implication is that the Tribunal should have referred the case to the Court. We are bound to say that we consider this criticism to be unjustified. Apart from its length, which suggests an inability to isolate the essential issues, the decision of the Tribunal is clear and well expressed and shows that the Tribunal had a good grasp of the stance of the parties on the various points arising. If the Judge's admonition were carried to its logical conclusion the Court would have been likely to be swamped with cases in which the Tribunal had declined jurisdiction. In reality this case was no more difficult or extensive than many which Tribunals throughout the country addressed routinely. The problems have been caused in large part by an apparent failure by all concerned to identify clearly the essential issues.
In places the judgment of the Court does not articulate why the Court was differing from the Tribunal. It can fairly be said that the Tribunal failed to see the wood for the trees, and the Court failed adequately to address a central issue which the case clearly raised and which had featured, albeit obliquely, in the submissions made on behalf of the present appellants. That issue is whether the respondent had the contractual power to transfer the appellants to work in the Men's Prison. We think it desirable to address that matter immediately.
Power to transfer
Both Miss Harris and Mrs Skinner commenced their employment at the Christchurch Women's Prison at times when there was clearly no express or implied power vested in their employer to transfer them to work in the Men's Prison without their consent. Mr Chauvel rightly did not seek to argue otherwise. Indeed at the time Mrs Skinner was first engaged, we understand it was unlawful for women to work in Men's Prisons. Mr Chauvel correctly acknowledged that on the state of the evidence there was uncertainty whether, in the intervening time, the appellants had become contractually bound to submit to such a transfer without their consent. Indeed, if the point had to be decided on the basis of the material before us, we think the probabilities are that the respondent had no such power as that asserted. If the appellants were transferred to the Men's Prison in breach of contract, that must have amounted to unjustifiable action on the respondent's part. Such action was to their disadvantage as they had health and personal reasons for not wanting to work in the Men's Prison and could assert with contractual force that they were employed to work only at the Women's Prison.
Mr Chauvel mentioned certain collective contracts affecting prison officers which had been entered into but in their absence from evidence it is impossible to decide whether they might have a bearing on the present issue. It is necessary to examine how the Tribunal, and then the Court, dealt with this issue. The Tribunal noted the respondent's contention that the two women were appointed to work at Christchurch Prison and for operational reasons they could be deployed anywhere within that prison, which included both the Men's and the Women's Prisons. The Tribunal did not accept this argument, which was based essentially on the fact that the two prisons were a single gazetted penal institution. By contrast the Judge decided that the single gazetted prison argument was "well founded as a mixed question of fact and law". He said no more than that and gave no reasons for reaching that view. His observation to this effect was simply an aside during the course of discussing the Tribunal's approach. He did not return to the point at any later stage.
We cannot accept that simply because the two prisons may have been gazetted as a single penal institution a woman employed to work in the Women's Prison could be required to work in the Men's Prison against her will. The matter is essentially one of contractual intention. To say that one can infer consensus between the parties to this effect, simply because of the legal status of the two prisons as a single institution, is unconvincing in the absence of any evidence that the parties were aware of the underlying legal position and intended it to have the consequences now asserted. What is more, it seems an inherently unlikely proposition that by accepting work at a Women's Prison a female prison officer thereby agrees to be redeployed in a Men's Prison without her consent simply because the two prisons are regarded in law as a single penal institution.
Mr Chauvel argued that even if the transfer was contractually unjustifiable the Court was entitled to override that difficulty pursuant to its "equity and good conscience" powers under s104(3). The first problem with this argument is that the Judge did not purport to do so. Indeed he did not say why he accepted the respondent's argument. The second is that it cannot be right that a contractually unjustifiable requirement made by an employer can be treated as if it were justifiable by dint of the equity and good conscience powers of the Court. That would be to give the Court some general power to dispense with contractual terms and to turn conduct which is contractually unjustifiable into conduct which is justifiable and vice versa. We do not accept that the equity and good conscience power has that reach. In Aoraki Corporation Limited v McGavin [1998] 3 NZLR 276, 298 (CA) this Court emphasised that the Employment Court's equity and good conscience powers were not an "independent remedy". They must be exercised in a manner which is consistent with the Act and any applicable contractual terms.
For these reasons we cannot accept the Judge's assertion that the "gazetted penal institution" argument, as it was called, permitted the Department to transfer the appellants to work at the Men's Prison without their consent. This was an error of law made by the Judge, not involving any protected question of contractual construction in terms of s135(1).
The next question is what should be done to resolve the issue. The fact that the Tribunal rejected the "gazetted penal institution" argument does not conclude the matter. Indeed the point is hardly central to the contractual intention of the parties. The fact that the Judge, without giving reasons, and erroneously in law, accepted the argument is obviously not determinative either. This Court is not in a position to decide the point, both because that is not our statutory role, and because the evidence may not be complete on the issue. The appropriate solution is therefore to remit the issue to the Employment Court for reconsideration in the light of the evidence already given and such further evidence as the parties may elect to call or produce.
If the Court finds upon such reconsideration that the respondent lacked the power to transfer, it will have to decide what remedial consequences flow from that finding. If the Court finds there was a power to transfer, two possibilities arise. Either the Judge's conclusion that the exercise of the transfer power was a justifiable action by the respondent should then take effect or the Court should be directed to reconsider the justifiability issue as well. The appellants wish that to be done because they do not accept the propriety of the Judge's conclusion on this point. We do not overlook that the appellants' first preference would be to have us uphold the Tribunal's conclusion that the action was unjustifiable but we do not consider that course is open to us or would be appropriate anyway. For the reasons which follow we are of the view that the justifiability issue should be reconsidered by the Court, in addition to its reconsideration of the first issue. The consequence is that the whole appeal should be reconsidered by the Court on the basis set out below.
Justifiable action?
Following the emergence of problems at the ChristchurchWomen's Prison said to involve the appellants, Mr Monk set up an investigation. The appellants contend there were procedural and substantive flaws in the conclusions to which the inquiry team came. The major recommendations made to Mr Monk by the inquiry team were that the appellants should be transferred to the Men's Prison and that they should be offered counselling and assistance in dealing with the transfer. Whether a dismissal or other action of an employer is justifiable depends significantly on what a reasonable employer could and would have done in the position which the particular employer faced.
Aside from the question of his power to transfer, and the procedural complaints about the conclusions of the inquiry team, we consider it self-evident that Mr Monk could reasonably have come to the conclusion on the basis of the report, that in the interests of the smooth running of the Women's Prison, it was both desirable and necessary to transfer the appellants to the Men's Prison. He had to do something and the only other solution mentioned to us would have been to dismiss them on appropriate notice, which may well have led in any event to similar difficulties. If there were the power to transfer, and also a procedurally unimpeachable report, Mr Monk's action could not have been regarded as unjustifiable in terms of s27(1)(b). This however was not the focus of the Tribunal or the Court. If such had been the focus below, much of the very lengthy discussion which took place, both in the Tribunal and the Court, could have been avoided. What the Court will have to concentrate on when reconsidering this issue is whether there were any procedural flaws in the way the inquiry team's conclusions were reached, such as to make it unreasonable for Mr Monk to act upon the recommendations the report contained.
The Tribunal held that there were such flaws. The Judge reached a different conclusion but his reasons for doing so did not adequately address the basis for the conclusions reached by the Tribunal. The Judge did not indicate, even when questions turned on credibility, why he saw himself as justified in taking a different view of the facts. It may be that the Judge was entitled to reach the conclusions he did, but he was not entitled to do so without giving reasons adequate to the occasion. The first 54 pages of his judgment were occupied in setting out the background to the litigation, traversing the Tribunal's decision, directing himself on appellate principles, discussing counsel's submissions, and identifying the grounds of appeal. The crucial points of fact on which the Judge reversed the Tribunal were dealt with very shortly.
When reconsidering the present issue the Court will not be assisted by the close attention which has hitherto been given to whether the transfer of the appellants was for disciplinary or operational reasons. If it is found that there was a power to transfer, the justifiability of its exercise in the particular circumstances will turn on whether the recommendations of the inquiry team derived from a process which was fair to the appellants.
The Judge's conclusion was based primarily on the view that the Tribunal had not given sufficient weight to the operating conditions in the prison. The Judge put it more elaborately:
Despite all that Ms Sewell has strongly contended to the contrary, I hold that the Adjudicator did not take sufficiently and appropriately into thoughtful evaluative account the necessary demands/obligations imposed upon prison officers working in their special custodial environment.
In developing this theme the Judge nowhere referred to relevant findings of fact and credibility which the Tribunal had made in support of his overall assessment. On the question of the procedural fairness of the enquiry, upon which the Tribunal had made detailed findings adverse to the respondent, the Judge first cited at considerable length from a decision of his own, and then merely observed:
I have concluded that the Adjudicator, with respect, has quite inappropriately held that process failures and/or omissions, as he determined them, have led to the commission by the Department of Corrections of unjustifiable disadvantaging grievances against and affecting each of the respondents in their employment setting comprising both the first and second major disadvantaging grievances which the Tribunal substituted for the alleged grievances of constructive unjustifiable dismissals. I hold that, upon a balanced evaluative application of the reasonable requirements of procedural fairness in the particular circumstances of this case, these contended grievances are unsustainable because I hold both employees were in fact treated fairly in all the material circumstances.
This is really no more than to state a conclusion without any engagement of the Tribunal's careful reasons for reaching his contrary conclusion. The Judge was of course entitled to reach a different view from that of the Tribunal. Indeed he may ultimately be found to have been right in doing so, but he was not entitled to do so without giving reasons appropriate to the occasion. Failure to give reasons appropriate to the occasion and the issues arising, amounts to error of law (Lewis v Wilson and Horton Ltd, CA131/00, judgment 29 August 2000). Thus on this aspect of the case also there was material error of law on the Judge's part and the issue should be reconsidered by the Court.
Conclusion
For the reasons given the appeals of both Miss Harris and Mrs Skinner are allowed. The judgment of the Court is set aside. Pursuant to s136 of the Act we direct the Court to reconsider the respondent's appeal from the Tribunal. We direct the Court to reconsider first whether the respondent had the contractual power to transfer the appellants to the Christchurch Men's Prison. If there was no such power the Court must consider the consequences of such a finding. If there was such a power the Court must reconsider, in terms of this judgment, whether the respondent's action in directing the transfer amounted to unjustifiable dismissal or unjustifiable action and, if so, what relief the appellants are entitled to. In addressing the first issue, namely the power to transfer, the Court should allow the parties to call or produce such further evidence as they wish.
The second issue should be reconsidered on the record of the hearing in the Tribunal in the usual way. The costs of the reconsideration shall be in the discretion of the Court as will be the costs of the first appeal and those in the Tribunal.
Both aspects of the reconsideration should be conducted by a different Judge. As neither side assisted the Court or the Tribunal by a clear articulation of the essential issues we regard both parties as having contributed, to a greater or lesser extent, to the need for this reconsideration. We therefore make no order for costs in this Court.
Solicitors
Glover Sewell, Christchurch, the Appellants
Rudd Watts & Stone, Wellington, for Respondent
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