Webb v Dunedin City Council
[2001] NZCA 178
•29 May 2001
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 196/00 |
| BETWEEN | GENEVIEVE ELIZABETH MARY WEBB |
| Appellant |
| AND | THE DUNEDIN CITY COUNCIL |
| Respondent |
| Hearing: | 21 May 2001 |
| Coram: | Richardson P Thomas J McGrath J |
| Appearances: | J Ablett‑Kerr QC and T M Stephenson for Appellant P B Churchman and M B Couling for Respondent |
| Judgment: | 29 May 2001 |
| JUDGMENT OF THE COURT DELIVERED BY RICHARDSON P |
This appeal on law under s135 of the Employment Contracts Act 1991 is against the judgment of the Employment Court of 18 August 2000 dismissing the appellant's appeal from the decision of the Employment Tribunal of 21 February 2000 which dismissed her personal grievance claim that her employment was affected to her disadvantage by unjustifiable actions by her employer, the Dunedin City Council ("the Council").
Background
Ms Webb is a highly skilled art gallery professional who as Registrar of the Dunedin Public Art Gallery had a primary responsibility for the safe and secure handling of art works, including the reception of art works delivered by transport companies to the Gallery. To ensure that art works were unloaded and received into the Gallery in good condition, truckers and security staff were to wait until Ms Webb or one of the other two authorised staff were on hand to supervise reception of the art works. As well, in the present case it was a term of the agreement with the City Gallery, Wellington, that the Dunedin Gallery staff supervise the unloading of the exhibition which was of works by an internationally renowned artist.
On 20 November 1999 receiving protocols were not followed and when Ms Webb arrived at the loading bay she found some works had been unloaded. The persons present were Mr John Begg of the transport firm, his assistant and Mr Walter Hayward of the security firm contracted to the Council. She remonstrated and sought to take control of the situation. She was, she said, abused verbally by the security guard and physically assaulted by him. She complained promptly to her manager. Investigations, discussions and correspondence ensued. The three immediately involved, Ms Webb, Mr Begg and Mr Hayward, made statements. There was also a videotape which had captured much of the to‑ing and fro‑ing. Mr McDonald, Administration Services Manager for the museums business unit, studied the tape and on 22 November reported in writing to Mr Robinson, Museums Manager, recording what he saw and drawing conclusions. In rather emotive language Mr McDonald expressed the view that the whole incident was created by the way in which Ms Webb chose to deal with a situation which she obviously felt was handled inappropriately, and that:
In my personal opinion, Genevieve's approach, on this occasion, was inappropriate to the circumstances and if it is found that this method is usually adopted, she may well benefit from some specific training to provide her with some other less confrontational but more effective options.
These observations are based on the viewing of the videotape and consequently form only part of the picture.
Others later watched the tape and formed their own views. There was union involvement, and Ms Webb had legal representation. On 22 December Mr Robinson announced his decision - that Mr Hayward's conduct was unacceptable and he was to be rostered off week days for two months; that Ms Webb was also at fault in the incident, that there had also been some previous instances of verbal confrontation on her part with staff, and that she was required to undertake an anger management course. She immediately wrote, refusing to do so, and objected to her employer's treatment of her in that way. After her lawyer also wrote, the Council, through its industrial relations consultant by letter of 29 January 1998 advised, first, referring to the meeting on 22 December 1997:
2.15Ms Webb was further advised that the Council viewed any incident of physical altercation as totally unacceptable and in all cases appropriate action would be taken by the Council.
2.16It was also explained to Ms Webb that it was the view of the Council that there was some evidence that she had contributed to the incident and its escalation in that her approach to Mr Hayward and the Mana Transport people had been unreasonable and somewhat aggressive, and that her overall approach was not acceptable to the Council. It was requested that Ms Webb, with the assistance of the Council, should attend anger management counselling.
and then, under the heading, "The Present Position of the Council":
3.3The Council remains of the view that Ms Webb's approach to Mr Hayward, and the Mana Transport staff was unreasonable and somewhat aggressive, despite Ms Webb's failure to accept such is so. However, in order to progress this matter towards a resolution, the Council will not now require Ms Webb to attend an anger management course. Nevertheless, the Council continues to have some concerns about Ms Webb's approach to people in certain circumstances but is hopeful that Ms Webb can exercise her own judgement appropriately in the future.
The Employment Tribunal and the Employment Court
Mediation was unsuccessful. The personal grievance was lodged with the Employment Tribunal in June 1998 and there was a two day hearing before the Tribunal in October 1999. The Employment Tribunal recorded that in her closing submissions Mrs Ablett‑Kerr grouped the unjustifiable actions alleged under three heads: failure to provide a safe workplace; the failure to deal with the applicant's complaint promptly and fairly; and the alleged "stigmatisation" of the applicant as a person with anger management problems.
On the important question of what conclusions should be drawn from the tape and other material as to what actually happened in the 20 November incident, the Employment Tribunal found:
My short conclusions from having viewed the tape, in conjunction with the other evidence on point, are that Ms Webb has translated her understandable upset over the fact that the unloading had begun into a verbal offensive directed at Mr Hayward, including some aggressive posturing, that Mr Hayward responded to the point that there was an aggressive verbal confrontation between the two, that Mr Hayward eventually sought to exit the situation, and that in doing so he at least once and possibly twice laid hands on Ms Webb intending to move her aside, and that he thereby assaulted her, albeit that the assault was at the lower end of the scale. It goes without saying that, regardless of provocation or circumstances, and regardless of the degree of force applied, such use of physical force in the workplace is not acceptable.
For the reasons it gave, the Employment Tribunal concluded that absent any reasonable basis for finding that the Council ought to have believed that the guards generally, or Mr Hayward in particular, posed a threat to the art gallery and museum staff generally, or Ms Webb in particular, there was no logical basis for a finding that the respondent ought to have taken steps to safeguard employees from such a threat. Relevant to two submissions made on the present appeal, the Employment Tribunal observed first, that having watched the tape closely, Mr Begg's account of the November 20 incident was credible. He was essentially a neutral observer, and his account was not inconsistent with what appeared to be occurring on the videotape. Second, referring back to its finding of assault by Mr Hayward, the Tribunal noted that, if a member of the respondent's managerial or supervisory staff had touched Ms Webb in the manner that Mr Hayward had, it would have had no hesitation in finding on that fact alone that Ms Webb had been disadvantaged by an unjustified action of the employer.
Next, the Employment Tribunal, and again for the reasons it gave, rejected the submission that the Council failed to deal promptly with the complaint - and found that the employer's handling of the matter was reasonable and justifiable. And as to the associated claim that the Council failed adequately to denounce Mr Hayward's behaviour, the Employment Tribunal found the Council's handling of the matter to be reasonable and justifiable.
The Employment Tribunal then considered the remaining parts of the unjustifiable action claim together, namely, the initial requirement that Ms Webb take an anger management course; the refusal to apologise for having done so even after the requirement was withdrawn; the allegation that Ms Webb had had previous verbal confrontations with staff, and the making of that allegation absent any action under the complaints procedure; and the refusal to withdraw or apologise over that suggestion. Because this is now the major issue, and because the Employment Court upheld the reasoning of the Employment Tribunal in this regard, it is appropriate to set out the whole of the appropriate passage:
Again the question is whether the actions of the respondent employer were sufficiently unsatisfactory as to be unjustifiable. My view on this may already be largely apparent from the foregoing discussion. There are several points to be made. First, I have found that the respondent was reasonably entitled to form the view, on the evidence before it, that Ms Webb's verbally and posturally aggressive reaction to the unloading of the art works on November 20 had been inappropriate and provocative of the confrontation with Mr Hayward. Second, I accept that informal reports of some other abrasive verbal exchanges between Ms Webb and others surfaced during the investigation of the November 20 incident. Had there been complaints lodged at the times of those incidents they might well have been required to be subjected to the complaints procedure. What happened, in fact, was that they surfaced during the investigation of the November 20 incident and were seen by respondent management as consistent with what they regarded as Ms Webb's inappropriate behaviour during that incident. Third, I accept that when those matters surfaced during the investigation, they would have been sufficiently dated as to not be appropriate subjects for formal complaint at that time. Fourth, even disregarding those peripheral matters, the respondent was within its rights, having reasonably concluded that Ms Webb's angry reaction provoked the confrontation of November 20, to propose that she undertake an anger management course. That, it seems to me, was a relatively positive response to what management reasonably saw as a sustained angry outburst not conducive to good working relations. Fifth, it is apparent from Ms Webb's letter of December 23 that she saw the anger management course "requirement" as a proposal, and one that she had at least some scope to decline to accept, as indeed she did. And sixth, when Mrs Ablett‑Kerr, acting for Ms Webb, insisted that the proposal for the anger management course be withdrawn, it was.
I think that in that list of considerations, there is one unsatisfactory element, namely the handling of the previous incidents of alleged verbal aggression that surfaced during the investigation. I accept without reservation that there was nothing sinister in the surfacing of these reports during the investigation. That they surfaced when they did seems to me an entirely unsurprising phenomenon. Nonetheless, those peripheral matters ought either to have been entirely disregarded by management in its handling of the November 20 incident or, alternatively to have been put to Ms Webb in sufficiently specific detail that she was able to respond to any suggestion that she had acted inappropriately in each such instance cited. I think that that would have been the cautious and fairest approach, and consistent with the observations of the Court in Sparks v Parkway College Trustees [1991] 2 ERNZ 851, as cited by Mrs Ablett‑Kerr, even allowing that management was moving towards proposing anger management counselling rather than formal discipline for Ms Webb's role in the November 20 incident.
Beyond that, again relying on my finding that respondent management was reasonably entitled to have formed the view that Ms Webb was partially responsible for the November 20 incident, I don't find any basis for criticism of the employer's handling of matters under this limb of Ms Webb's claim. Nor, under the standard defined in Bellis, do I find the unsatisfactory element discussed in the previous paragraph to be sufficiently substantial or damaging to render the respondent's handling of the matter unjustifiable. I so conclude because I accept that the respondent's perception that Ms Webb had problems with anger management, and its proposal that she undertake anger management counselling, arose because of and relied in large measure upon its reading of the November 20 incident.
In short summary, as that part of the applicant's claim that charges the respondent with justifiable actions in relation to the incident of November 20, 1997, in the several ways that have been noted and examined above, I find that the respondent has discharged its burden of establishing that it acted in a justifiable manner in all respects, and so I find no breach by it or its contractual obligations of trust and confidence.
Finally, the Employment Tribunal considered and rejected five claims of disadvantage flowing from the unjustifiable action claim made by the appellant. Again, because of the emphasis on the argument of the appeal on the anger management issues, we record what the Employment Tribunal said at that point:
I think in relation to the fourth that it is correct to say, as a matter of fact, that Ms Webb's reputation will have been tarnished to some extent by the respondent's allegations about anger management difficulties and the suggestion that she was in need of counselling, and that that adverse consequence is of a nature capable of constituting a disadvantage. Mr Churchman's submissions to the contrary notwithstanding. ... While I have accepted that concerns about Ms Webb's anger management were handled less than ideally in relation to earlier differences with other staff, I have held that on the central incident of November 20, the respondent was entitled to form the views that Ms Webb's angry approach caused the confrontation with Mr Hayward and that that angry behaviour was unacceptable, and to put that view to Ms Webb. It may be regrettable, and not helpful to her in her employment, but the weight of the evidence is that Ms Webb is perceived by some of her colleagues and managers as occasionally engaging in abrasive behaviour. Given that, on the evidence of the November 20 incident, there is some reasonable basis for that view, and given my finding that there was no unjustifiable action on the part of the respondent, any disadvantage that results does not give rise to a personal grievance.
The Employment Court set out at considerable length passages from the evidence and from the Employment Tribunal's decision, recorded the court's similar assessment of the videotape, and relatively shortly explained how and why the Tribunal's "reasoned conclusions - comprising both factual determinations and mixed determinations of fact and law - impress me as plainly sustainable determinations upon the evidence". In that regard the Court considered that "the 'assault' as characterised by the Adjudicator must be perceived as comprising a modest application of force which occurred in the particular circumstances of this case as materially determined by the Employment Tribunal and highlighted in silent form upon the videotape".
Submissions on appeal
The written submissions for the appellant identified six issues which it was argued were respects in which in terms of the jurisdictional requirements relating to appeals under s135, the decision of the Employment Court was "erroneous in point of law":
hThe First Issue is whether, as a fundamental principle, the use of physical force in the workplace needs to be immediately and unequivocally denounced regardless of any perceived provocation (which the Appellant denies in any event).
hThe Learned Judge held that the assessment of whether an employer's action is justified requires careful evaluation of the context of the case. However, an action which relies on the breach of a primary principle such as the use of force against another in response to no provocation or non‑physical provocation, cannot as a matter of law, be reasonable.
hThe Third Issue is the acceptance by the Tribunal, and by the Judgment appealed against, of unsworn evidence as having greater weight than evidence on oath.
hThe Fourth Issue is, given that the principles of natural justice apply to Employment law, whether it is open to an employer to commence a disciplinary action against a complainant within the context of investigating the original complaint.
hThe Fifth Issue concerns procedural fairness - the failure of the Respondent to advise the Appellant of the information adverse to her that had come to light in its investigation, and the failure to give her the opportunity to respond.
hThe Sixth Issue is that the Employment Tribunal (and thus inferentially, the Employment Court) wrongly found that the Security Guard (Mr Hayward) had insufficient standing to deprive the Appellant of her contractual rights to fairness and protection from foreseeable danger.
The written submissions for the Council summarised the submissions in response:
First Issue
There was a clear denunciation of the use of physical force. The Appellant's actions were provocative, aggressive and confrontational. The Tribunal's findings on this issue, and inferentially the Employment Court's findings, were not unreasonable or perverse.
Second Issue
Arguments based on public policy considerations of provocation never justifying an assault, and on the need to protect women in the workplace, are irrelevant. They go beyond matters raised in the Tribunal and are not errors of law.
Third Issue
The learned judge and the Tribunal did not err in giving more weight to Mr Begg's evidence. The Tribunal's findings (and inferentially the Employment Court's findings) that Mr Begg's account was not inconsistent with what occurred on the videotape are justifiable and cannot be challenged.
Fourth Issue
There was never any disciplinary action commenced against the Appellant.
The Tribunal's findings that the proposal to undertake anger management counselling arose because of the November 20 incident and not from the basis of earlier incidents cannot be challenged.
Fifth Issue
... Any so called [procedural fairness] errors were inconsequential and did not affect the outcome.
Sixth Issue
The Tribunal's findings (and inferentially the Employment Court's findings) that all reasonable practicable steps were taken to protect the appellant are sustainable and cannot be challenged on appeal.
Discussion
There is obvious difficulty in relating most of the issues as framed in the appellant's written submissions to the language of s135 which requires focussing on the decision of the Employment Court and on that decision as being erroneous in point of law. Nor are we entitled under s135 to reassess the evidence before the Employment Tribunal and the Employment Court and to review findings of fact, except where as constituting an error of law there is no evidence to support the findings or the only reasonable conclusion contradicts the determination (Edwards v Bairstow [1956] AC 14, 36; and Wellington Free Ambulance Service Inc v Ross (CA 181/00, judgment 29 May 2001)).
But as the oral argument developed, the primary focus was directed to the anger management requirement, initially decided on by the Council and subsequently withdrawn, and to the invoking by the Council of historical allegations of difficult behaviour on the appellant's part as being a breach of natural justice. It was those concerns which were at the heart of the fourth and fifth issues as originally framed.
In that regard Mrs Ablett‑Kerr made two associated submissions. The first concerned the Employment Tribunal's conclusion that the Council's perception that Ms Webb had problems with anger management and its proposal that she undertake anger management counselling arose because of, and relied in large measure on, its reading of the 20 November incident (para [3] above). Mrs Ablett‑Kerr submitted that that conclusion was inconsistent with the pleadings. The second was that, while the Employment Tribunal recognised that the historical matters ought either to have been entirely disregarded by management in its handling of the 20 November incident, or put to Ms Webb in sufficient detail to give her fair opportunity to respond (para [9] above), which did not happen, the procedure employed was fatally flawed and the Employment Tribunal (and the Employment Court) erred in law in not reaching that conclusion.
Paragraph 36 of the statement of claim and the responding paragraph in the statement of defence read as follows:
36.On or about 22 December 1997 the Respondent advised the Applicant of its view that the Applicant had a record of verbal encounters with the Respondent's staff and that it required the Applicant to take an Anger Management Course.
36.THAT it admits the allegations contained in paragraph 36 of the Statement of Claim and says that the Applicant was advised that an investigation of issues had concluded that the Applicant had contributed to the initial verbal exchange between herself and the guard and that the Applicant had to accept some responsibility for the escalation of the circumstances. The Respondent also advised the Applicant that while Efficient Security Limited had to accept some responsibility for the actions of their employee the Respondent had become aware that the Applicant had been involved in previous verbal exchanges with people working in the Art Gallery. Therefore, given the profile of the Applicant's position within the Gallery and the requirement for high level of interpersonal skills in the Applicant's position as Registrar, the Respondent required the Applicant to undertake some anger management counselling with the assistance of the Respondent.
As well, Mrs Ablett‑Kerr fairly made the point that the belated and grudging withdrawal of the anger management requirement (para [4] above) must have left a taint. Indeed, that resulting tarnishing of the appellant's reputation was recognised by the Employment Tribunal (para [10] above). We agree with these observations. We fully accept that, if it is reported to an employer that an employee is displaying a temperament in the workplace which is inimical to a good working environment, the employer is entitled to take the matter up with the employee. It may or may not be appropriate to suggest an anger management course. Because of the sensitivity of a suggestion which necessarily relates to a person's nature, however, the matter needs to be raised in a manner which is fair to the employee. In the present case, the Council may or may not have a problem with the appellant's alleged occasional aggressive responses in the workplace. That has not been established. It was, however, unfortunate, as the Council seems to have recognised in withdrawing its requirement or request that the appellant undertake an anger management course, that the issue was raised in the context of a complaint of assault by the appellant against an outside employee. But for the reasons given by the Employment Tribunal, and adopted by the Employment Court, the issue does not give rise to a question of law in this court.
Mrs Ablett‑Kerr also fairly acknowledged that she did not submit to the Employment Tribunal or the Employment Court that the pleadings foreclosed the Employment Tribunal's inquiry and accordingly that the Tribunal was not entitled to make its ultimate finding that the anger management proposal arose because of, and relied on in large measure, its reading of the 20 November incident. Clearly, too, there is no evidential basis for the proposition that the Council commenced a disciplinary action against Ms Webb. The Employment Tribunal had a great deal of factual material before it and had the opportunity and responsibility of assessing and evaluating the whole of the evidence. We cannot discern any errors of law in the factual assessments, in the conclusions that the Employment Tribunal reached, or in the reasoning processes. In that regard the extended passages set out at paras [9] and [10] speak for themselves. And, given those unassailable factual findings, the submission that the procedure adopted by the Council was fatally flawed lacks any adequate evidential foundation.
The remaining matters advanced in support of the appeal can, to the extent necessary, be dealt with quite shortly. First, the Employment Tribunal found, and with ample evidence to support the finding, that Mr Hayward's conduct was unacceptable and denounced the use of physical force. The Tribunal expressly accepted Mrs Ablett‑Kerr's submission that verbal provocation will never justify an assault in employment law. We read the Tribunal's immediately following observation that, had a member of the management or supervisory staff touched the appellant in the manner that Mr Hayward did, the Tribunal would have found on that fact alone that she had been disadvantaged by an unjustifiable action of the employer (on which the "sixth issue" was based), as reflecting the added feature of managerial power over a worker in the employment relationship, not as treating workplace assaults by others as excusable.
Second, the challenge on appeal to the acceptance by the Employment Tribunal of Mr Begg's statement (the third issue) is untenable. The Employment Tribunal was empowered to admit such evidence as in equity and good conscience it thought fit, whether strictly legal evidence or not (Employment Contracts Act 1991 s96). In this case the Tribunal was able to assess Mr Begg's statement along with the videotape and the other evidence and cautiously concluded that his account was not inconsistent with what appeared to be occurring in the videotape and was credible. There was no error of law in admitting and assessing the evidence in that way.
Finally, there is no basis in law for disturbing the essentially factual finding of the Employment Tribunal that the employer had not failed to deal with Ms Webb's complaint promptly and that its handling of the matter was under the circumstances reasonable and justifiable.
Result
For these reasons the appeal must be and is dismissed with costs of $5,000 and reasonable disbursements including travel and any accommodation expenses of one counsel as fixed, if necessary, by the Registrar.
Solicitors
McKinnon Aitken Martin, Dunedin, for appellant
Anderson Lloyd Caudwell, Dunedin, for respondent
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