Women's Refuge Sexual Assault Resource Centre Marlborough Inc v Ruffell
[2002] NZCA 321
•17 December 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA121/02 |
| BETWEEN | WOMEN’S REFUGE SEXUAL ASSAULT RESOURCE CENTRE MARLBOROUGH INCORPORATED |
| Appellant |
| AND | SHERYL JOY RUFFELL |
| Respondent |
| Hearing: | 5 December 2002 |
| Coram: | Gault P Blanchard J Glazebrook J |
| Appearances: | P M Muir for Appellant B A Fletcher for Respondent |
| Judgment: | 17 December 2002 |
| JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J |
Introduction
Women’s Refuge Sexual Assault Resource Centre Marlborough Inc (the Refuge) appeals against a decision of the Employment Court (Chief Judge Goddard) on 14 May 2002 reversing a decision of the Employment Tribunal (Mr J M Goldstein) on 31 October 2000. The Employment Court entered judgment for the present respondent, Ms Ruffell, on a personal grievance claim and awarded her $10,000 compensation for an unjustified suspension followed by an unjustified dismissal, together with a further $2,560 for lost wages.
The appeal to this Court is confined by s135 of the Employment Contracts Act 1991 to questions of law. Ms Muir, for the Refuge, has endeavoured to persuade us that in three respects relating to the dismissal the Employment Court has erred in its approach to its appellate function by substituting its view of the facts for that of the employer, failing to properly analyse the evidence upon the basis of which the Tribunal made its decision, failing to give due weight to the Tribunal’s findings of fact and credibility of witnesses and failing to identify “with reasonable particularity” why the Tribunal was wrong in coming to its view of the evidence. The appeal also challenges the view of the Employment Court that the suspension was unjustified and contests the quantum of the award of $10,000.
Facts
Ms Ruffell was employed by the Refuge initially as a Women’s Advocate and from October 1998 as Women’s Education Facilitator. She became a party to a collective employment agreement and, as a term of her employment, agreed to abide by the Refuge’s Codes of Ethics, Confidentiality and Behaviour. A very important element in the Codes is the philosophy of the Refuge requiring absolute confidentiality. For example, there is the following statement:
The only reason to discuss a woman’s situation with anyone outside refuge is when someone’s safety is threatened or when there is the need to disclose relevant information between agencies. Whenever possible this is done with the client’s knowledge and permission.
A further prohibition, also said to have been contravened by Ms Ruffell, is as follows:
Failure to notify the Convenor of involvement in any voluntary or professional service that may not be in the best interest of the Refuge.
The Refuge takes the view that any form of paid employment with the Department of Child, Youth and Family Services (CYFS) gives rise to a conflict of interest.
It is also an important philosophy of the Refuge, recorded in the Code of Ethics that there shall be “parallel refuge facilities for and by Maori women”. In practice, this requires that every Maori woman coming to the Refuge for help is to be offered the services of a Maori Advocate.
In the collective employment contract, under the heading “Warning Procedure and Stand Down,” it is provided:
Where the Employee is alleged guilty of serious misconduct she shall be stood down and placed on standby and told to report at a time which permits a full inquiry into the incident.
At the heart of this appeal are three instances in which the Refuge considered that Ms Ruffell had been in breach of the Codes. There had been an earlier incident at the end of 1998 as a result of which Ms Ruffell had received a final written warning in February 1999. After this time, a number of complaints were made about her conduct. She was suspended without pay on 2 June 1999. This was done by leaving a letter on her desk to that effect. No investigation or discussions with her had occurred concerning the complaints at or before that time. She requested details of what was being alleged against her and on 4 June received a letter which very briefly listed ten allegations but without any explanatory material. At a meeting on 10 June, details were given of the complaints and an opportunity of an adjournment was offered to her which she declined. Advice of Ms Ruffell’s summary dismissal was conveyed to her by letter on 16 June.
Tribunal decision
The Tribunal’s decision contains a description of the incidents which gave rise to the allegations and records some of the evidence given at a two day hearing, but its conclusions are stated in a way which in our view is unsatisfactory. Findings of credibility were made, adverse to Ms Ruffell and the woman who had acted as her supporter at the meeting on 10 June, but those findings and the Tribunal’s determinations are not linked to the evidence of the particular incidents. The Tribunal merely said that the Refuge had been entitled to hold (and did hold) a reasonable and honest belief that Ms Ruffell had breached client confidentiality in regard to three women. (This appeal concerns such a breach only in respect of one of those women, Ms C.) The Tribunal also found that the Refuge was entitled to hold a reasonable and honest belief that Ms Ruffell had a conflict of interest as a result of an involvement with CYFS. As a consequence, the Tribunal said, the Refuge was entitled to form the view that Ms Ruffell had breached all of the Codes. Although the Tribunal had earlier referred to evidence concerning an allegation that Ms Ruffell had misled the Refuge regarding the desire of a Maori woman, Ms W, to have a Maori Advocate, the Tribunal in making its findings made no direct reference to that matter, although it did mention Ms W in connection with a matter of client confidentiality, with which this appeal is not concerned.
Suspension
Chief Judge Goddard’s decision contains a section in which he summarises the role of Court when hearing appeals and the law relating to suspension. He remarked that where suspension was under consideration, the employee should be told that was so, and why, and given a reasonable opportunity to attempt to persuade the decision-maker either that the suspension was not called for or would be unfair, or that, even if there has to be a suspension because of the employer’s interests, it should be on pay. The Tribunal had said that suspension was “mandatory” under the terms of the Employment Contract when serious misconduct was alleged and that the manner in which the suspension was invoked was in the circumstances fair. Chief Judge Goddard took a different view, clearly influenced by the decision of this Court in Birss v Secretary for Justice [1984] 1 NZLR 513 in which it was said that the rules of natural justice and fairness prima facie applied to suspension from office without salary in the absence of any clear expression of a contrary legislative intent. (That case involved a statutory power of suspension but there is no reason to think that the position is different where the position is governed by contract.) The Judge said that the way in which the suspension had been handled, with the letter of suspension being simply left on the employee’s desk for her to read upon arrival at work, with no opportunity of averting suspension or advancing reasons why it should be on pay, was extremely humiliating.
In this Court, Ms Muir submitted that the Judge failed to take into account the statement in the collective employment contract that where an employee was alleged guilty of serious misconduct she shall be stood down. But that does not mean, as the Tribunal thought, that suspension is mandatory. Obviously it would not be a breach of the employee’s contract if the Refuge decided not to invoke suspension without pay. The employer has a discretion in the matter which ought to be exercised, except in a case of urgency, which this was not, only after the employee has been advised of the complaint and given some opportunity of putting forward reasons why there should not be a suspension without pay. To suspend someone on that basis is a serious step which may put an employee under financial and other pressure. No error of law has been shown in relation to the Court’s decision that the suspension was unjustified.
Dismissal
The first of the three matters which the Refuge still says justified the summary dismissal concerned Ms Ruffell’s relationship with CYFS which, it is submitted, put her in a position of conflict of interest. That relationship had two elements. The first, not the subject of a complaint, is that she had been a foster parent for her husband’s grandchild and had received payments from CYFS to reimburse her costs. When the Refuge made inquiry of CYFS in April 2000 it confirmed that Ms Ruffell had not been employed by them at the relevant time. The Refuge had been aware of the fostering of the grandchild but, although evidently uncomfortable with it, had not asked Ms Ruffell to desist. Secondly, one of the members of the Refuge said she had been told by Ms Ruffell that Ms Ruffell had been paid by CYFS as a “tracker”, i.e. a person who goes in search of a child on behalf of CYFS. But it emerged after the dismissal that this was a misunderstanding. A girl who had been fostered by Ms Ruffell prior to the commencement of her employment with the Refuge had overdosed on drugs and was in hospital. Ms Ruffell, at CYFS’ request, had made two visits to her. CYFS had classified Ms Ruffell as a tracker in order to be able to remunerate her for those visits, but she had never actually acted as a tracker.
It was well open to Chief Judge Goddard to take the view on these facts that the conflict of interest ground of dismissal upheld by the Tribunal was untenable. Indeed, we share his opinion that there was no possible incompatibility between the respondent’s position with the Refuge and her two short visits to her former foster child. Therefore there was no serious misconduct by Ms Ruffell – in fact, no misconduct at all. The finding was, in effect, that no reasonable employer could conclude that there was. It follows that it cannot be said that the Chief Judge erred in law in this respect.
The second matter was an alleged breach of confidentiality. Ms C had telephoned the respondent at the Refuge seeking assistance in moving to the Refuge from where she had been living with a male partner. Evidently there had been a history of abuse from that partner. Ms Ruffell rang the police seeking their presence and, according to a letter from a police officer who was not called as a witness before the Tribunal, Ms Ruffell told the police that the partner had beaten Ms C up and that was why Ms Ruffell was asking for assistance. Ms C later complained that Ms Ruffell had given information to the Picton Police which was untrue. The Refuge took the position, as a result of that complaint, that no safety concern had existed on this occasion and hence there had been a breach of confidentiality in what Ms Ruffell told the police.
Unfortunately the Tribunal did not explain the basis on which it concluded that there had been a breach of confidentiality, but it would seem to have accepted the view that Ms C’s safety was not at any risk. The Chief Judge, on the other hand, considered that the premise that there was no safety issue was based on Ms C’s assertion that on the particular occasion her partner consented to her leaving and going to the Refuge. He said he did not find that premise convincing:
The call to the Refuge must have been prompted by some crisis. The situation could easily have become dynamic again upon the appellant’s arrival at the couple’s home. It would then have been too late to call aid. Moreover, it is not difficult to imagine that a useful police role on such occasions is to ensure that there is no following by the partner of the Refuge worker and the woman seeking refuge. What the appellant did was standard refuge and police procedure and it was not useful to inquire long afterwards just how the appellant had described the particular situation to the police.
As previously stated, the object for which [the Refuge] exists is to make available support and temporary accommodation for women and their children who are facing abuse. That must have been the basis on which the appellant was asked to assist Ms C to move to the Refuge. She was entitled to call the police and tell them that this is what she was doing and it would have been apparent to the police that she was acting because a woman was facing abuse. It cannot have been a breach of the terms and conditions of the appellant’s employment for her to involve the police.
Ms Muir took us through the evidence but failed to persuade us that the Judge had no basis for this view. Ms Ruffell said in her brief of evidence that there had been “a crisis call”. It seems to us self-evident, as it did to the Chief Judge, that Ms C would not have been seeking refuge unless there was something of an emergency. Ms Ruffell also said:
She wanted to leave but said that her partner was agreeable. However, because of past domestic violence I was required to contact the police and seek assistance. Following the procedures that I was told at the Refuge I contacted the Picton Police. I advised the police that the woman wanted to leave the home, that her partner agreed but because of past domestic violence I requested police assistance.
This raises the possibility that the police officer who received the call misunderstood the position and thought that he was being informed about current violence. His letter was admissible before the Tribunal but its value as evidence is diminished because he did not give oral evidence. In any event, Ms Ruffell also said in cross-examination that she needed the police because “we are not to go to any scene when the partner is still there and the partner was still on the property”. On the basis of that statement – which was not directly addressed by any of the appellants’ witnesses – the Judge made his observation that what the appellant did was standard refuge and police procedure. This conclusion by the Judge therefore had some basis in the evidence and, in the absence of any reasoned finding by the Tribunal, it cannot be said that the Judge improperly substituted his own opinion for that of the Tribunal.
The last of the three surviving matters of complaint against Ms Ruffell was phrased in the letter to her from the Refuge of 4 June 1999 as “Misleading the Refuge regarding a client’s refusal to work with the Maori Advocate.” The evidence before the Tribunal concerning this matter was, as Chief Judge Goddard noted, quite confused. It will be remembered that the Refuge had an important policy of trying to ensure that a Maori woman who wished to have a Maori Advocate should be afforded that service. Ms W made a complaint against Ms Ruffell that she had not received any income or food as Ms Ruffell had promised when she first came to a Refuge safe house. Oddly enough, the Refuge’s position seems to be that, if Ms Ruffell had failed in these respects, her neglect of the client would not have been serious enough to warrant more than a censure. But Ms W also complained:
Sheryl [Ruffell] also said I did not want to work with a Maori worker but she lied, because I did want a Maori worker to help me.
On the day on which Ms W first came to the care of the Refuge (a Friday) there was no Maori Advocate available. Ms Ruffell looked after her. There was conflicting evidence about whether Ms Ruffell had reported on the position over the next couple of days (at a weekend) to her superiors. In their evidence they seem to accept that this may have occurred. Ms Ruffell then took Ms W to Court for a hearing on the Monday and thereafter seems to have dropped out of the picture so far as Ms W was concerned.
In her brief of evidence, Ms Ruffell said that she had explained to Ms W that she had a right to see a Maori Advocate if she wished, but that none was available at the moment (on the Friday) and that Ms W had accepted that situation. In the course of her cross-examination Ms Ruffell said that she had telephoned the Maori Advocate at home (she was ill) concerning Ms W. The Maori Advocate did not give evidence. A witness for the Refuge, Ms Munro, appeared to accept that Ms Ruffell may well have made such a call.
It was the evidence of Ms Rutherford, the Convenor of the Refuge, that, at some unspecified but later time, the Maori Advocate had found Ms W to be upset and saying that she had not been offered a Maori Advocate. Ms Rutherford had then spoken to Ms Ruffell asking her why she had not told the Maori Advocate that there was a Maori woman in the house and Ms Ruffell had replied that Ms W had not wanted a Maori Advocate. It was that statement which was alleged to have been misleading of the Refuge. It was submitted that this had led or contributed to a breakdown in confidence in Ms Ruffell. Ms Muir submitted that it had been reasonable for the employer to hold the view that it had been misled and that the Chief Judge had been wrong to substitute his view for that of the employer.
This matter was not the subject of any direct finding by the Tribunal. It referred to Ms W in recording its findings only in the context of an alleged breach of client confidentiality. The Tribunal had however noted that in cross-examination Ms Ruffell confirmed that she had told Ms Rutherford that Ms W was not worried about having a Maori Advocate. The Tribunal commented:
This evidence almost accords with Ms Rutherford’s evidence that the applicant told her that Ms W did not want a Maori Advocate.
The Employment Court said that it seemed most likely that Ms Ruffell “took a shortcut” and worked with the client [Ms W] after satisfying herself that the client did not insist on having a Maori Advocate. It would apparently have involved some delay if Ms Ruffell had had to wait until the Maori Advocate was next available. The view of the Chief Judge was that it was not at all clear that the decision-makers, i.e. those who were making the decision about dismissal, were turning their minds to the allegation of misleading in their questioning of Ms Ruffell. “It is not clear in what way she misled the Refuge as opposed to perhaps confusing the client”. The Judge considered that there was no sound basis in fact for concluding that she had misled the Refuge.
We have a good deal of sympathy for the position in which the Chief Judge found himself as a result of the very confused state of the evidence, which often did not address the actual allegation i.e. the misleading of the Refuge, as opposed to any failure to offer a Maori Advocate to Ms W. It is also unclear in parts of the evidence which point of time is being addressed – the Friday when the Maori Advocate was not available, or later when she may have been. Bearing in mind the uncertainty about the Tribunal’s finding and that our role is limited to questions of law, we would not be justified in disturbing the Chief Judge’s factual conclusion in these circumstances.
Compensation award
The way in which the Chief Judge calculated the award of compensation was to fix sums of $4,500 for the unjustified suspension (which the advocate for the Refuge had acknowledged some people might describe as “shabby”) and $10,000 for the unjustified dismissal. But he then deducted 20% for contributory fault by Ms Ruffell, arriving at a total of $11,600. As Ms Ruffell had claimed only $10,000, however, the net sum was reduced to that amount.
Two complaints are made about the assessment of quantum. First, the Chief Judge treated as an aggravation of the unjustified suspension the Refuge’s refusal to admit in the Tribunal and before the Court that it had been wrong, which was said to have increased the injury to Ms Ruffell’s feelings. Secondly, in relation to the unjustified dismissal the Chief Judge made the comment that it appeared that her position with the Refuge had been likely to be disestablished, and that there was a motive of ensuring that she was expelled from the Society.
Both of these comments by the Chief Judge were inappropriate. This was not a case in which the way in which the Refuge conducted its defence could properly have been marked by an increase in damages. It was entitled to try to defend itself and to justify its position. It did not embark upon gratuitous character assassination or adopt tactics deserving of criticism. As to the alleged motive, it suffices to say that Mr Fletcher, for the respondent, accepted that it had been no part of Ms Ruffell’s case that the Refuge had been motivated by a desire to avoid a redundancy situation.
Nevertheless, we consider that the award of $10,000 should not be disturbed. The way in which the suspension was imposed was regrettable and, even allowing for the fact that the Refuge is a voluntary society, the process of notification of the complaints and of investigation of the facts before a decision was taken left much to be desired. Furthermore, there has already been a reduction in the damages from $11,600 to $10,000 which is likely to have counteracted to a substantial extent any impact of the two matters which the Judge should not have taken into account.
Result
For these reasons, the appeal is dismissed with costs of $3,500 to the respondent together with her reasonable expenses, including travel and any accommodation expenses of her counsel, to be fixed if necessary by the Registrar.
Solicitors:
Simpson Grierson, Auckland for Appellant
Gascoigne Wicks, Blenheim for Respondent
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