Commissioner of Police v Cartwright [2000] NZCA 242 (11 October 2000)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca307/99

	between	E N RAMSBOTTOM LIMITED
		Appellant

	and	JODY STEFAN CHAMBERS
		Respondent

Hearing:	31 August 2000
Coram:	Richardson P Keith J Tipping J
Appearances:	T J Peters for Appellant A P Cressey and S N Meikle for Respondent
Judgment:	31 August 2000

judgment of the court delivered by RICHARDSON P

[1] This is an appeal under s135 of the Employment Contracts Act 1991 from a decision of Judge Shaw in the Employment Courtholding that the respondent, Jody Stefan Chambers, had been dismissed and without justification from his employment by the present appellant, E N Ramsbottom Limited, a drainage and contracting firm.

[2] The primary point on the appeal is whether the Judge was entitled to conclude in circumstances where the employee had walked off the premises that the employer was obliged to check with him that he had intended to abandon his employment and in failing to do so the employer had unjustifiably dismissed the employee.

Background

[3] Over the years the company had employed a number of former prisoners to give them a fresh start in life.When he left prison, Mr Chambers was employed on a one month's trial.After some two weeks' work he had a groin strain which he noticed in the evening and in the result did not return to work until a few days later on 2 June 1998.

[4] The practice was for the workers to assemble at the premises every morning to go off in gangs to the different jobs.When Mr Ramsbottom Snr arrived, Mr Chambers asked him if the ACC papers were in order. Mr Ramsbottom was concerned that the ACC claim could be a try on.There was an exchange between them.Having heard lengthy evidence, the Employment Tribunal concluded that the clear implication was that Mr Chambers' job was on the line but that on neither Mr Chambers' version of events, nor Mr Ramsbottom's, was Mr Chambers dismissed at that time. Mr Ramsbottom Snr left the premises.Mr Chambers asked the son, Martin Ramsbottom, was his father letting him go?According to Martin, he said he did not know and Mr Chambers would have to see his father. Martin in turn left for his job.Mr Chambers did not wait for Mr Ramsbottom Snr to return, nor did he wait to go off with the gang he had previously been working with, led by Peter Ramsbottom.He walked away from the premises, went to a temporary employment agency, and the same morning was given a short-term job which lasted the rest of the week.

[5] Later that day Mr Ramsbottom Snr checked and found that Mr Chambers had not joined Peter Ramsbottom's team that day.They assumed he had abandoned the employment.Mr Ramsbottom Snr's evidence was that he told Mr Chambers when he first engaged him that he could leave any day he liked - and, by implication, without giving any period of notice.

[6] Neither Mr Chambers nor the Ramsbottoms made or sought to make any contact with the other until 13 days later when Mr Chambers' lawyers wrote to the company raising as a personal grievance the contention that Mr Chambers had been unjustifiably dismissed:

10. After you [Mr Ramsbottom Snr] had finished your discussion with Martin, you walked off without saying anything to our client.Our client went over to Martin and s[aid], "What's your Dad doing - is he letting me go?" Martin replied, "Yes, we're letting you go."Our client understood that he was dismissed and went home. ...

12. On the basis of the instructions we have received we have advised our client that he has been unjustifiably dismissed.In particular, our client has no idea why he was dismissed other than you appeared to be disgruntled about paying his first week's Accident Compensation.Furthermore, his employment could only be terminated by the giving of reasonable notice and you gave no notice of termination whatsoever.

The personal grievance claim sought monetary relief, not reinstatement.

[7] The company's lawyers responded advising that Mr Chambers was not dismissed;that he walked off the job and effectively abandoned his work.

[8] Mr Chambers' statement of claim before the Employment Tribunal pleaded that he was unjustifiably dismissed on 2 June 1998.It did not refer to matters subsequent to that date or to the personal grievance claim as such but was couched in similar terms.

The decision of the Tribunal

[9] As noted in para [4], the Employment Tribunal (Mr D E Hurley, a very experienced lawyer and Tribunal member) concluded that Mr Chambers was not dismissed by Mr Ramsbottom Snr. Next, he discussed the evidence concerning the ensuing discussion between Martin Ramsbottom and Mr Chambers and concluded:"I accept Martin's version that he did not dismiss the applicant and instead referred him on the matter to Mr Ramsbottom Snr."

[10] The Tribunal continued:

Had Martin been a trained social worker I might have had different expectations of him.He is not.He is a blunt straightforward man with similar strengths to his father.I consider it inappropriate to impose too high a level of understanding or sensitivity on people in the contracting field, even though they voluntarily take on ex-prisoners and can therefore expect some special aspects of dealing with them.They treated the applicant as one of their normal workers.That is what he wanted.There is also an issue of his not being too oversensitive.

This is not a case where an employer has had a heated argument with an employee, leading the latter to think he or she had been dismissed.Rather my finding is that he read too much into the situation.This is understandable because of the background factors I have identified.I do not consider another worker would have left the workplace when the applicant did.It would have made sense to at least wait a few minutes and check things out with Peter when he arrived shortly thereafter.

...Mr Ramsbottom Snr did enquire of his son Peter later in the afternoon as to the applicant's whereabouts.This is consistent with his expectation that the job was still available, at least until the end of the probationary period.

M[y] formal findings on the facts, however, and bearing in mind the onus of proof lies on the applicant is that the applicant was not dismissed on the day in question as he claims.

Here the applicant had turned up for work, and apparently (as far as the employer knew) had second thoughts and walked away.He did not apply for reinstatement.Whilst I have some concerns about the lack of follow up by the employer which I refer to below, my findings on the facts are not such that would establish a claim for unjustified dismissal.Basically the respondent's communications through both Mr Ramsbottom Snr and Martin were abrupt and ineffectual in that they caused real apprehension.At that point the applicant overreacted through a misunderstanding.It was not a misunderstanding for which the respondent should have to take responsibility relating to the loss of the job.

[11] The Employment Tribunal went on to consider whether under the power conferred by s34 of the Employment Contracts Act he should determine whether a personal grievance of a type other than the one pleaded had occurred and, in particular, was it reasonable for the company to have made some investigation? The Tribunal had already distinguished the present case from one where the employee left following a heated argument leading the employee to think he or she had been dismissed, in which case, he said, follow up after a cooling off period can be advisable.For the reasons he gave, the Tribunal concluded it was not a case where he should invoke s34 and "give the parties an opportunity to answer those fresh issues".

The decision of the Employment Court

[12] The appeal to the Employment Court was advanced on two grounds:

(a) that the Tribunal's finding that the appellant was not dismissed was contrary to the weight of the evidence;and

(b) that the Tribunal's finding that the respondent's failure to make any attempt to contact the appellant to find out the reason for his absence from work did not give rise to a personal grievance for either unjustified dismissal or unjustified action, was wrong in law.

[13] The Employment Court rejected the first concluding that the factual findings made by the Tribunal could not seriously be challenged.Nothing further need be said as to that.As to the second ground, Judge Shaw concluded, although not put in that way in (b), that the Tribunal misdirected itself in law as to what constitutes a dismissal by interpreting the word too narrowly.She held that in the absence of a contractual provision such as the contractual term in Pitolua v Auckland City Council Abattoir [1992] 1 NZLR 6 concerning termination of employment by an employee who is absent for a specified time without notification to the employer:

[A]n employer does have an obligation to make an enquiry where it appears that an employee may have abandoned his/her employment.The main reason for this is that if there is no specified agreed terms upon which the parties can rely then both parties should be able to expect a minimum of fair treatment.

[14] The Tribunal had distinguished Pitolua as turning on the interpretation of a procedure an employer was required to follow under the employment contract in assessing an employee's explanation for not reporting for work.However, Judge Shaw saw the following statement in Pitolua of an employer's obligation, as applicable and decisive:

... there was an onus on the employer, once the union had invoked the grievance procedure under clause 18(q) of the agreement, "to have a complete and fairly conducted enquiry into the explanation put forward by the union, and to reach a fair decision about whether it was fair and reasonable to treat (the appellant) as if he had terminated his employment.

[15] The Judge considered that it was clear from the Tribunal's findings that Mr Chambers had good reasons on which to base his belief that he had been dismissed;that while the Tribunal had found that another worker would not have left the workplace when Mr Chambers did, "an employer must take an employee as it finds him or her";and that while, again as the Tribunal found, the company treated Mr Chambers as one of their normal workers, and that is what he wanted:

The realities of differing workplaces should not be overlooked and it is clear that the robustness of this particular workplace was evident, but a normal worker would nonetheless expect fairness and a degree of consideration which was not afforded this appellant.

[16] The Judge's ultimate conclusion was that the company failed at two significant points to properly investigate what was happening, to the disadvantage of the appellant, Mr Chambers, and had no justification for its actions.First, there was a dismissal of Mr Chambers by the company due to the combined actions of Edward Ramsbottom and Martin Ramsbottom, and by their failure to fairly check the situation with Mr Chambers when he did not appear for work as they expected.Second, when Mr Chambers submitted his personal grievance that he had been unjustifiably dismissed, the fair thing for the company to have done was to make an inquiry into the circumstances and consider renewing Mr Chambers' employment.

Obligation to check on apparent abandonment

[17] Mr Peters challenged both those conclusions.

[18] The first question is whether the Employment Court erred in law in concluding that the company as employer had an obligation to make an inquiry of Mr Chambers when it appeared he may have abandoned his employment;and that the Ramsbottoms' failure to do so following their earlier actions gave rise to a dismissal of Mr Chambers by the company.Although Judge Shaw drew on the combined actions of Mr Ramsbottom Snr and Mr Martin Ramsbottom as well as the failure to inquire as giving rise to the dismissal, the Tribunal's findings of fact which the Judge accepted were that neither Mr Ramsbottom Snr nor Mr Martin Ramsbottom had dismissed Mr Chambers.The argument necessarily turns on whether the failure to check gave rise to dismissal.

[19] As observed in Principal of Auckland College of Education v Hagg [1997] 2 NZLR 537, 546, "On an ordinary use of language 'dismissal' is a unilateral act by the employer which terminates the employment contract.'To dismiss' is defined in The Oxford English Dictionary as: 'To send away or remove from office, employment, or position;to discharge, discard, expel' ".

[20] And in the frequently cited decision in Wellington Clerical Union v Greenwich [1983] ACJ 965, 973 Judge Williamson, delivering the judgment of the Arbitration Court, defined dismissal as "the termination of employment at the initiative of the employer", noting that such a definition covers dismissals both upon notice and without notice and dismissals both actual and constructive.

[21] An employment contract may terminate in a variety of ways apart from dismissal.Thus, it may end through the relinquishment of the employment by the employee.The employer here believed that the employee had abandoned the employment."Abandoned" in its ordinary dictionary sense simply means "to give up".Whether in an employment abandonment constitutes misconduct and so a breach of contract, or whether it is an allowed means of ending the contract, depends on the express or implied terms of the particular contract.In some circumstances it may be an agreed informal mode of immediate resignation.

[22] While there are no specific findings by the Employment Tribunal in that regard, the only material evidence on the point, that of Mr Ramsbottom Snr, is that the oral agreement allowed Mr Chambers to leave at any time and so end the employment.Mr Cressey submitted, however, that before treating Mr Chambers' employment as being terminated, a fair and reasonable employer would have inquired as to why he was not at work.Had the company done so, then it would have learned that Mr Chambers had good reason to be absent in that he genuinely thought that he had been dismissed. Mr Cressey relied on the following passage from the judgment of this court in Pitolua (at p10):

It is now well settled that before dismissing or requiring the resignation of an employee an employer has in general an obligation to inquire fairly into the circumstances and to afford the employee an opportunity of stating his case. This obligation is but one facet of the wider relationship of confidence and trust that is implied as a normal incident of the contract of employment: Auckland City Council v Hennessey [1982] ACJ 700, Auckland Shop Employees Union v Woolworths (NZ) Ltd [1985] 2 NZLR 372, Marlborough Harbour Board v Goulden [1985] 2 NZLR 378.

[23] As is clear from the opening sentence in Pitolua, the court there was concerned with the process to be followed before the employer dismissed or required the resignation of an employee, that is, where the termination of the employment is at the initiative of the employer.It is, of course, a different situation from the present which concerns termination by the employee.

[24] But Mr Cressey went on to submit in oral argument that where an employer is faced with a situation of potential misconduct by the employee (in absenting himself or herself from work without good reason) the employer is obliged to inquire into the circumstances.That is not the present case. That was not the situation the company faced.The Tribunal's findings of fact that Mr Chambers was not dismissed by the company on the day by either Mr Ramsbottom Snr or Martin Ramsbottom were upheld by the Employment Court.Further, there was no question of potential misconduct given Mr Ramsbottom Snr's evidence that under the oral employment agreement Mr Chambers was free to leave.And Mr Ramsbottom believed Mr Chambers had done so.

[25] With respect to the Judge, we are satisfied that the company's failure to make inquiry of Mr Chambers as to his intentions after he had left the premises and apparently abandoned the employment cannot constitute the dismissal of Mr Chambers by the company.That is to say, the Tribunal did not adopt too narrow an interpretation of dismissal.

[26] At a late stage in the oral argument in this court, Mr Cressey submitted that where the issue is whether the employee abandoned the employment, the employer should be cautious in drawing that inference and must face a high threshold if contending that the employment ended on the employee's initiative in that way.There is substantial force in that submission and clearly the need for trust and fair dealing in the employment relationship should encourage the employer to make inquiries of the employee where the employee has not clearly evinced an intention to finally end his or her employment.But that matter does not arise for determination in this case. Mr Chambers' claim was that he was unjustifiably dismissed, not that, if not dismissed, he had not in fact abandoned his employment.And the personal grievance claim made 13 days later and the claim before the Tribunal was that the company had actually dismissed Mr Chambers, not that they should have checked with Mr Chambers before taking the abandonment at face value. And so it was properly approached by the Tribunal and the Employment Court as a dismissal case.

[27] Further, both parties claimed in the personal grievance and response to the personal grievance respectively, as well as before the Tribunal and the Employment Court, that the employment came to an end on that day, 2 June.

[28] Finally, on the evidence an objective bystander would surely have concluded from the events of the day and what was said at the time that Mr Chambers had given up the employment.

[29] He had come to work after days away during which he had conscientiously supplied ACC forms to the company.After a short discussion with Mr Ramsbottom Snr, he asked Martin Ramsbottom whether the father was letting him go and was told he would have to see the father.Instead of waiting to do so, or waiting and going off in Peter's gang, Mr Chambers walked away from the premises, went to a temporary employment agency and started a short-term job the same morning.Mr Ramsbottom Snr's evidence was that under the oral employment agreement Mr Chambers was free to leave without notice.Later the same day Mr Ramsbottom Snr checked and found Mr Chambers had not joined Peter's gang.

[30] We consider an objective bystander would reasonably conclude, as did the company, that Mr Chambers had abandoned the employment.But, as we have emphasised, that was not the basis on which the present grievance was argued in the Tribunal or the Employment Court.

Obligation on receiving personal grievance to inquire further into circumstances and consider renewing the employment

[31] The short answer to the second matter found against the company by the Employment Court is that there is simply no evidential foundation to support the court's proposition.The personal grievance claimed an actual dismissal. It did not seek reinstatement.It sought monetary relief only.The company responded as required by the Employment Contracts Act and as requested in para 14 of the personal grievance claim:

14. Please note that pursuant to Clause 5 of the First Schedule to the Employment Contracts Act 1991 you are required within 14 days of this letter to provide me with a written response specifying:

(a) Your view of the facts;

(b) Whether or not you are prepared to grant the remedies sought;and

(c) If you are not prepared to grant the remedies sought, your reason(s) why not.

[32] The evidence before the Tribunal was similarly limited.In short, there is nothing in the course of events or in the evidence to warrant the imposition on the company of an obligation arising after receipt of the personal grievance of the kind identified by the Employment Court.

Result

[33] For the reasons given the appeal is allowed and the orders made in the Employment Court are quashed, with the result that the Employment Tribunal decision is restored.Mr Chambers is legally aided and accordingly there will be no orders as to costs.

Solicitors

O'Regan Arndt Peters & Evans, Wellington, for appellant

Alan Cressey, Wellington, for respondent