Whanganui College Board of Trustees v Lewis
[2000] NZCA 136
•20 July 2000
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA09/00 |
| BETWEEN | WHANGANUI COLLEGE BOARD OF TRUSTEES |
| Appellant |
| AND | LORRAINE LEWIS |
| Respondent |
| Hearing: | 20 July 2000 |
| Coram: | Gault J Thomas J Blanchard J |
| Appearances: | R M Crotty for Appellant G J O’Sullivan and M G Austen for Respondent |
| Judgment: | 20 July 2000 |
| JUDGMENT OF THE COURT |
This is an appeal against an Employment Court decision under s135 of the Employment Contracts Act 1991 which is restricted to questions of law.
Facts
Mrs Lewis had been employed as an art teacher at Wanganui Collegiate School. She successfully brought a proceeding for unjustified dismissal against her employer, the appellant, and was awarded damages by the Employment Tribunal. The Employment Court dismissed the employer’s appeal in a reserved judgment on 9 December 1999.
There had been a number of complaints about Mrs Lewis’s teaching from students and their parents. Her explanations had been accepted by the Headmaster, Mr Hensman, in all cases except one (the facts of which are not presently relevant) and it can be taken for present purposes that these matters had been resolved. In connection with the complaint which was still current, Mr Hensman asked the Assistant Deputy Principal, Mr Clague, to investigate on his behalf. The Employment Court noted that the evidence before the Employment Tribunal revealed that while Mr Clague saw what he was doing as related to a performance review, Mr Hensman intended a disciplinary investigation.
Mr Clague’s inquiries came to centre on a mark book prepared by Mrs Lewis. We quote from the Court’s summary:
The reason was apparently some issue concerning whether she was doing any meaningful work with seventh form design students over and above sending them to polytechnic courses. Mrs Lewis handed in a mark book which recorded a then recent marking of some work. Mr Clague, in the course of his investigation, spoke to Mrs Lewis about a number of matters including her work with the design students, and he also spoke to the seven students. He spoke to them together and what he drew from having done so was, according to his report, the result of “collective prompting”. As the Tribunal noted, Mr Clague made no note of what passed between him and the students. What he understood them to tell him was that they had not received any mark, or had not done so recently. At this point it seems that Mr Clague saw his performance investigation drifting into rather deeper waters and he stopped his investigation and reported to the headmaster. He prepared a written report. In it he concluded that there seemed to be grounds for thinking that the mark book handed in by Mr Lewis contained an assessment of an event that, according to the students, had not take place, or contained an assessment that, according to them, had not take place.
Mr Hensman wrote a letter to Mrs Lewis on 3 June 1998 setting out his concerns. In it Mr Hensman said:
During the course of the investigation that has been conducted, it has been advised to me:
1. That marks have been given under ‘Board 1, 6 April’ in your Mark Book, for the mock up of the first board for the Design students;
2. That you advised Mr Clague the criteria for awarding the marks did not exist, and were not available for students to see. However, the strengths and weaknesses of each mock board were discussed with the students concerned;
3. Students in the Design course have indicated that none of them have been given a mark for their first board;
4. Further, students have advised that no Design students have been asked to produce a mock up of their first board;
5. That the Design students have been advised by you that they would be producing a mock up first board in two weeks time, after the examinations;
6. This advice was given to the students after Mr Clague had visited with you to discuss the marks.
It would appear that it is possible that you have failed to comply with the School assessment policy which requires the student to be informed of:
1. The planned programme of assessment activities at the start of a course of learning;
2. The nature, date and timing of any assessment activity at least two weeks in advance;
3. The standards and conditions involved in an assessment activity;
4. The results of the criteria used to obtain them; and
5. The procedure for applying for extension for exemptions.
It would further appear that it is possible that you have submitted marks to me, which are purported to be for a mock up of the first board of the form 7 Design course, with such assessment having never occurred.
It is further possible that you told your class that the first mock up assessment would take place in the near future, having just told Mr Clague the period before, that this assessment had already happened.
Mr Hensman asked Mrs Lewis to meet him and warned her that disciplinary action was being considered, including the possibility of dismissal. Mr Clague’s report was not sent to Mrs Lewis who did not see it until the meeting began on 18 June. At her request the meeting was then adjourned until the next day to give her an opportunity to consider the report. When the meeting resumed Mrs Lewis, who was represented by Mr O’Sullivan, challenged the report. The critical issue was whether a mock up board had been assessed by Mrs Lewis. After a further adjournment Mr Hensman informed Mrs Lewis that he had concluded that the assessment of the students which Mrs Lewis said had occurred had not in fact taken place. Mr Hensman’s reasons for so concluding were not stated. Mrs Lewis was told of the possible consequences for her employment and given a brief time to prepare submissions on penalty. The meeting resumed and after hearing those submissions Mr Hensman advised her that she was dismissed. This was confirmed in a letter sent a few days later.
The decisions below
The Employment Tribunal said that the employer’s justification for the dismissal was that it had been open to a fair and reasonable employer to conclude with an honestly held belief that Mrs Lewis had falsified marks for an assessment that did not occur. Mr Hensman reached that conclusion on the basis of Mr Clague’s report. But Mr Clague had not kept notes of his questioning of students and Mr Hensman himself had not spoken to them. He had accepted Mr Clague’s conclusions without testing them with any of the students. Furthermore, Mrs Lewis had been given no opportunity of having any input into the report.
The Employment Tribunal said that the evidence relied on for the employer was not sufficient “to tip the balance of probabilities” in favour of the employer. A serious allegation required a high standard of proof on the balance of probability. Mr Hensman’s conclusion had not been open to him in circumstances in which Mrs Lewis denied the allegation of falsifying marks and challenged the process leading to it, which left doubt about the information being relied upon.
On appeal the Employment Court found no error of law in the Employment Tribunal’s decision, nor any fault in its approach to its assessment of evidence. The Court agreed with the Tribunal that the Headmaster had relied on insufficient evidence in finding Mrs Lewis to be guilty of misconduct, and had not given Mrs Lewis an appropriate opportunity to respond to the allegations. That the employer’s belief was honestly held did not overcome the deficiencies in the Headmaster’s investigation process.
The appellant’s submissions
The appellant now alleges the Employment Court wrongly elevated certain matters of fact to statements of law. They are:
That the Clague report was wrongly treated as part of the inquiry.
That the headmaster was required to put Mrs Lewis’s account of events in detail to the students and other authors of the allegations.
That an experienced teacher was unlikely to behave in the way suggested.
In addition, the appellant alleges that the Employment Court wrongly attributed the following arguments to it:
That failure to follow an adequate procedure could not take away from the honesty of the employer’s belief in a state of facts.
That the onus was on the employee to satisfy her principal that she was innocent of wrongdoing.
The respondent’s submissions
The respondent submits that the matters of fact were not treated as rules of law. As to the first, the Employment Court’s finding was not stated as a rule of law, and even if the Employment Court was incorrect in its finding, this could have no bearing on the overall result as the Clague report was insufficient in itself to provide grounds for dismissal. As to the second, the Employment Court did not elevate this finding to a rule of law, but simply found as a matter of fact that the Headmaster did not trouble to put Mrs Lewis’s account to the students. As to the third, the Employment Court was merely applying the approach adopted in Court of Appeal decisions that the more serious the misconduct alleged, the more inherently unlikely it is to have occurred.
The respondent also disputes that arguments were wrongly attributed to the appellant. As to the first, there is no evidence supporting this claim, and even if there were, what arguments the appellant made is a finding of fact by the Employment Court, not able to be disturbed on appeal. As to the second, the respondent points out that the appellant has quoted words out of context, and that a reading of the full text discloses that there is no wrong attribution of argument to the appellant.
Matters of fact treated as rules of law?
The Employment Court found that Mr Clague’s report on Mrs Lewis’s performance was insufficient evidence on which to dismiss Mrs Lewis. The Tribunal had found that Mr Clague had seen the investigation as a performance review only (and not the disciplinary investigation that the Headmaster thought it was). The Employment Court stated that it was wrong for the Headmaster, Mr Hensman, to treat the Clague report as being part of the inquiry, as it simply raised allegations, and did not provide proof of them. It is this statement that is challenged by the appellant. The statement does not appear to be a statement of a rule of law by the Employment Court, but merely a finding in the particular circumstances of the case. In addition, the respondent appears to be right in her submission that, even if the report could have been treated as part of the inquiry, this would not change the overall result, as the Tribunal was clear in its finding that the report itself provided insufficient evidence for the Headmaster to act as he did.
As to the second matter, the Employment Court merely stated that putting Mrs Lewis’s account of events to the students questioned by Mr Clague would have been “a particularly desirable course” of action – not that it was a legal requirement or that the failure to do so made the dismissal unjustified. Nor did the Employment Court state as a rule of law that the employee’s version must always be put to the authors of an allegation – simply that in the circumstances of this case, with the preliminary nature of the investigation carried out by Mr Clague, it would have been wise to do so.
On the final alleged statement of law, it is already an approach approved by this Court that the more serious the misconduct alleged, the more inherently unlikely it is to have occurred (Glovers Food Processors Ltd v Leaosavaii [1999] 1 ERNZ 478). The Employment Court was not stating a rule of law but simply applying this approach to the facts at hand.
The wrongly attributed arguments
We do not need to decide whether Mr Crotty submitted to the Employment Court that failure to follow an adequate procedure could not take away from the honesty of the employer’s belief in a state of facts. Accepting that he did not so submit, we cannot see how the Court’s misapprehension as to any such argument could have made any difference to the result.
The appellant appears to misstate the position concerning the other allegedly wrongly attributed argument. The Employment Court was merely saying that the effect of Mr Crotty’s argument was that the onus would be on the employee to satisfy the employer that she was innocent of wrongdoing. We do not read the Court to have said that the appellant actually put an argument to that effect.
The standard of proof
One matter arises out of consideration of the decisions, particularly that of the Tribunal in this case, although it was not the subject of argument on the appeal.
The test for justifiable dismissal is whether the decision to dismiss was a reasonable and fair one: was dismissal a course reasonably open to the employer in the circumstances? When applying to that the civil standard of proof it is necessary to keep in mind the distinction between the enquiry the employer makes and the enquiry the Tribunal or Court subsequently may be called upon to make. To fail to do this may result in the view of the employer, reasonably formed, being overridden by views of the Court, formed perhaps with the benefit of hindsight (Northern Distribution Union v BP Oil New Zealand Ltd [1992] 3 ERNZ 483, 488).
The ascertainment of facts on which an employer forms a belief that an employee has engaged in serious misconduct is not the same as proving to a Court or Tribunal that the dismissal was justified. The first does not involve any standard of proof, the second does. In ascertaining the facts the employer may be presented with conflicting accounts. He or she, acting reasonably, will be entitled to accept some in preference to others. That does not call for the application of any legal standard of proof. Nor is it usual to impose the application of a legal standard of proof on decisions of a litigant. That is not needed; there is already the standard of reasonableness. But when required to prove that dismissal was justified the employer will need to show that both the course taken to ascertain the facts and the determination that they warranted dismissal were reasonable. That must be shown on the standard of proof of the balance of probabilities flexibly applied according to the gravity of the matter (the dismissal) in the circumstances.
In an appropriate case, where it is material, it may be necessary to revisit some of the remarks in previous judgments including Airline Stewards & Hostesses of New Zealand IUOW v Air New Zealand [1990] 3 NZILR 584 and Managh v Wallington [1998] 3 NZLR 546 in light of the comments just made. In that respect it is noted that Honda NZ Ltd v NZ Shipwrights etc Union [1990] 3 NZILR 23 involved an appeal from a decision of the chairman of a grievance committee.
Result
The appellant has failed to establish any error of law. To the contrary, it is plain that the questions sought to be raised were in reality challenges to findings of fact. The appeal therefore did not properly come within s135. The Court has previously had cause to criticise attempts to dress up factual issues for the purpose of promoting an appeal under s135.
The appeal is dismissed and the appellant ordered to pay the respondent’s costs on the appeal in the sum of $5,000 together with reasonable disbursements, including travel and any accommodation costs of one counsel, to be fixed by the Registrar in the absence of agreement between the parties.
Solicitors
Treadwell Gordon & Co, Wanganui for Appellant
Cullen, Wanganui for Respondent
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