W & H Newspapers Ltd v Oram [2001] NZCA 142; [2001] 3 NZLR 29; (2001) 6 NZELC 96,197; [2000] 2 ERNZ 448; (2001) 1 NZELR 267 (3 May 2001)

Last Updated: 13 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA140/00

	BETWEEN	W & H NEWSPAPERS LIMITED
		Appellant

	AND	R ORAM
		Respondent

Hearing:	22 March 2001
Coram:	Gault J Blanchard J McGrath J
Appearances:	J G Miles QC and P A Caisley for Appellant A J Little for Respondent
Judgment:	3 May 2001

JUDGMENT OF THE COURT DELIVERED BY GAULT J

[1] Mr Oram was dismissed from his position as a journalist with the appellant, the publisher of The New Zealand Herald, on 11 August 1999. On his personal grievance under s27 Employment Contracts Act 1991 he was found by the Employment Tribunal (Mr I M Davidson) to have been unjustifiably dismissed. That decision was upheld by Judge Palmer in the Employment Court. The employer has appealed under s135(1) contending that the decision of the Court was erroneous in point of law.

The Factual Background

[2] In July 1999, Mr Oram, who was a senior and experienced reporter, was reporting for the Herald on the proceedings of a liquor licensing hearing in the Auckland District Court. At issue were applications for renewal of the licences for the Kaipara Tavern and the manager’s certificate of a Mr David Smith. There was evidence in opposition from the police who alleged Mr Smith was the leader of a gang regarded as one of the most dangerous organised crimes operations in the country. The Home Editor of the Herald agreed with Mr Oram that the story would not be reported day by day but was suitable for more extensive treatment in the Weekend Herald.
[3] On 21 July Mr Oram, having arranged for a photographer to photograph Mr Smith, directed him to a group of three people emerging from a café near the District Court. He had earlier told the assigned photographer that Mr Smith was Maori and given a brief description of his clothing. The photographer photographed a Maori man who came out of the café with a Maori woman and a pakeha man. Mr Oram did not consciously watch the photograph being taken.
[4] It happened that the man photographed was not Mr David Smith but a social worker who was attending the hearing in a supportive capacity.
[5] It was decided that Mr Oram’s article (one of three intended for publication) should be the lead story for the Weekend Herald on Saturday 24 July. It appeared across the front page accompanied by a large reproduction of the photograph with a caption referring to the subject as “Gang Chief”, and describing him as David Smith claimed by police to be a career criminal and leader of career criminals. The article made extensive reference to police evidence of Mr Smith’s claimed criminal record.
[6] Needless to say the man whose photograph was published strongly objected to the damage to his reputation. The complaint came promptly and Mr Oram was asked for his explanation for the mistake. He wrote two memos for the Editor in Chief, Mr Ellis. He accepted responsibility, exonerated the photographer and recorded that, on the Friday before publication, “On a couple of occasions I thought I should take a look at the pic ..., but got lost on other things”.
[7] On the following Tuesday Mr Oram was told there would be disciplinary action. He attended a meeting the next day accompanied by a lawyer. The investigation was conducted jointly by Mr Ellis and Mr Harman, the Editorial Manager of the Herald. At the meeting Mr Oram accepted that he seemed to have misidentified Mr Smith through the café window and was not watching when the photograph was taken. But, on advice, he contended that he must not take all the blame. He referred to the clothing description he had given the photographer and to the “Herald system of dealing with photographs”. That system was described in the Tribunal decision in a summary of the evidence of Mr Land, the manager of the picture and graphics department, as follows:

Mr Land gave evidence concerning the layout of the picture and graphics department in the newsroom. He said the picture desk was an area incorporating approximately eight workstations and a long bench, sometimes described as the picture bench. He said the picture bench has a light box for checking negatives, various trays for photos which were to be archived or used in particular sections of the newspaper. It also had a job sheet listing by which photographers were assigned to projects day to day. He said in addition there is a large work area where completed jobs were displayed. He said when a photographer returned from an assignment they printed off two copies of each picture and stapled the pairs of photos together in a bundle. The photographer then placed the complete bundle or job on the picture bench. He said the photographs were held on the picture bench so that anyone had ready access. He said on any day there might be a large number of people who may need to review a particular photo or job, amongst them being:

(i) Reporters;
(ii) News editors;
(iii) Picture editors;
(iv) The photographer;
(v) Other photographers;
(vi) Sub-editors.

Mr Land said the basic system of having two copies of each photo held in a central location had been in place at least since 1978.

[8] In a written statement presented to the meeting, Mr Oram said:

I have said earlier that while I was in the office after the hearing I reminded myself twice to have a glance at the photograph when I was downstairs, but overlooked doing so – I worked long and hard ensuring this story was accurate and balanced, and in nearly three days on this story, there was catch-up work on my desk when I finished it. If I had gone in search of the picture, we would not be in this predicament. However, you have to admit that it is not incumbent on me to check photographs taken to illustrate my stories, nor is it, in fact, encouraged.

To explain what I have just said: Since I arrived at the Herald I have from time to time told senior designated staff (particularly those on the news and illustrations desks) that this is the only newspaper I have worked on that does not give reporters the responsibility for photo captions. Journalist friends outside of the Herald also express surprise when I tell them of the Herald “way”; it is also alien to them. I declared to those senior staff, each time, my belief that the Herald way was inferior. However, because I was raised to be concerned about pictures and captions, I have gone out of my way to check pictures and captions written by photographers. Some photographers are virtually illiterate – it takes little imagination to gather how “leftenant” has been spelled when I was on the defence round ... and often the leftenant was, in fact, a major, or names were wrong way round.

However, I feel I am a nuisance when I go looking for photographs. Often I am busy, but have to hang around, because I give myself low priority, at a busy illustrations desk. Sometimes, because they are busy no doubt, I am given the impression that it is none of my business. This does not encourage a reporter to take an interest in the picture.

[9] The Tribunal expressly found that there were no formal written instructions concerning the checking of photographs that had been taken. The Tribunal also found that Mr Oram’s explanations for not having checked the photograph “are not persuasive”.
[10] On 29 July, a written summary of the employer’s preliminary views was handed to Mr Oram. This indicated that the company considered his conduct, both on 21 July when the photograph was taken and subsequently in failing to check the photograph, of such seriousness as to entitle the company to consider dismissal. Mr Oram was invited to reply. He did so through his solicitor.
[11] By letter of 9 August the employer dealt with matters that had been raised on behalf of Mr Oram and advised him that the company intended to dismiss him. He was given the opportunity to resign. He declined and was dismissed two days later.

The Tribunal Decision

[12] After setting out a lengthy summary of the evidence of all of the witnesses, the Tribunal recorded the approach to be adopted in the following terms:

Should Mr Oram be dismissed? The Tribunal cannot substitute its own decision for that of the employer if:

The employer has shown that the decision to dismiss was in all the circumstances and at the time a reasonable and fair decision. Airline Stewards and Hostesses of NZ IUOW v Air New Zealand Limited [1990] 3 NZLR 548 (CA), 555-556, per Bisson J.

The Court does not function in order to substitute a decision with which it is more comfortable for one which it considers harsh. It is the Court’s function to consider the action of the employer at the time of dismissal and in its own circumstances in order to determine whether it is capable of being shown to have been a just decision when it was made. Northern Hotel etc IUOW v Waikato Hospital Board (1989) 3 NZILR 258,261.

Was the decision to dismiss a fair and reasonable one in all the circumstances of the case? There are two issues. Was the conduct complained of capable of amounting to serious misconduct? Whether in all the circumstances of the case dismissal was warranted? See Click Clack International v Jarvis [1994] 1 ERNZ 15.

[13] Having identified the two separate issues, the Tribunal, under a heading “The Conduct”, embarked upon a consideration of whether the conduct was capable of amounting to serious misconduct. But the decision thereafter deals with all of the circumstances, including those more appropriate to the second issue identified, although that was not separately addressed.
[14] The Tribunal found that in circumstances in which he knew the employer was relying on him, and with the reasonable expectation that the story would be a leading story that contained serious allegations, Mr Oram failed to ensure the right person was photographed. His second error was in not focussing on the party crossing the road immediately before the photograph was taken. It then found:

Mr Oram also did not subsequently check the photograph. I find he had ample opportunity to do so. He was also aware that he should have checked the photograph. He said out of curiosity he intended to do so but did not. Mr Oram knew that the article he had written could be and most probably was likely to be a significant feature in the Weekend Herald. The evidence of Mr Murphy and Mr Oram’s own evidence persuaded me that is so. Mr Oram also was very experienced, he knew he was “on to a good story” of which he had written a substantial part. He knew the severity of the allegations that were to be made. Therefore, one would have expected a high degree of care from him in such circumstances. I find as Mr Ellis said the systems were not to blame.

...

I find the conduct complained of was an act of negligence. The Tribunal is charged with finding and determining whether in all the circumstances of the case the applicant’s actions amounted to serious misconduct. I find that the respondent has conducted a proper investigation in the sense that the procedures they adopted would have led to a full exposure of the information necessary for them to reasonably form an opinion on how to discipline Mr Oram.

...

Should then a single act of negligence or mistake such as he made lead the respondent to conclude that he could not be relied on in the future and lead them to conclude that they could no longer trust him to perform his duties diligently?

I find Mr Harman and Mr Ellis, and the other members who made the decision to dismiss Mr Oram, did weigh these matters in reaching a conclusion as they said, but I am not satisfied that they weighed them evenly and had due regard to the following factors (which are not in any weighted priority).

(i) Mr Oram’s initial acceptance of responsibility.
(ii) His expression of regret and contriteness.
(iii) His early and immediate attempts to assist the Herald minimise the damage to them.

(iv) The effects of the dismissal upon him.
(v) His length of experience and blameless employment record with them.
[15] The Tribunal then referred to evidence of Mr Ellis that he was influenced in reaching his conclusion that he “could no longer reside in Mr Oram the trust that is ... absolutely vital between an editor and his staff”, by Mr Oram’s change of attitude. Whereas initially he had been contrite and accepting of blame, he had “shifted to a position that appeared cavalier and unaccepting of responsibility for the error”. These views were not mentioned in the letter setting out the employer’s preliminary view nor in the final letter giving reasons for dismissal. The Tribunal held that the importance of the omission to give Mr Oram an opportunity to respond directly to these allegations “cannot be underestimated”. The Tribunal considered the attempt to divert responsibility by pointing to the system and specific accountabilities was understandable in light of the developing threat to Mr Oram’s job. The Tribunal said:

I therefore find that a significant aspect of the respondent’s conclusion about Mr Oram’s future conduct and reliability was not put to him prior to his dismissal. This has tarnished the procedural fairness in a termination that otherwise has all the indices of a copy book process.

[16] The decision also noted that there were no checks and balances in the Herald’s system and that the Herald should take some responsibility for the mistake.
[17] The Tribunal concluded:

I do not accept that the correct proportions have been measured in respect of weighing his length of service and blemish free record, against the likelihood of a recurrence of such an error. Sufficient consideration has not been given to the impact on the dismissal on Mr Oram against his blemish free record. The respondent’s case does not convince me of this. Therefore I conclude Mr Oram has been unjustifiably dismissed. The respondent’s decision to terminate his contract was based on two grounds; the error and its effects, and Mr Oram’s subsequent behaviour in defending and explaining his behaviour which led the respondent to believe he could not be trusted in the future to carry out his duties. While the respondent properly investigated the former and sought an appropriate response from the applicant it did not put the latter to him to answer. In my view these concerns should have been raised with Mr Oram. The conclusion reached was pejorative to Mr Oram’s retention of his job yet he had no opportunity to answer this damning conclusion. This however was a finely balanced case. I find the above factors have not been weighed correctly against the outcome. I find the employer has not justified this dismissal on the grounds of serious misconduct in all the circumstances of the case.

[18] An order was made for immediate reinstatement of Mr Oram. No further orders were made and costs were to lie where they fell.

The Judgment of the Employment Court

[19] Judge Palmer dismissed the employer’s appeal. His judgment is to the effect that the Tribunal correctly dealt with the material issues and made findings that were open to it.
[20] The Judge did address specifically one particular aspect of the argument before him. This related to the system employed by the Herald for dealing with photographs. He referred to three passages in the Tribunal decision that on their face appeared inconsistent. At one point the Tribunal had said the systems were not to blame, whereas elsewhere there were references to the absence of a safety net or checks and balances in the system and the statement that the Herald should take some responsibility for the mistake. The Judge considered the statements reconcilable. He said:

In my view, in finding at p31 of his decision that the Herald systems “were not to blame”, I discern this as really meaning that those systems did not in themselves culpably cause what so unfortunately happened. I am accepting of this particular proposition, but I am also compatibly accepting of the other determinations made by the Adjudicator which I have immediately cited from pp 31 and 34 of his decision. Construed in the manner I have outlined, I am able to logically and harmoniously reconcile the Adjudicator’s cited remarks to which I have referred at pp 30, 31 and 34 of his decision. In short, I hold the Tribunal materially concluded – in my view upon sustainable grounds – that the systems in place were deficient in not compulsorily requiring compliance with imposed verification safeguards, and thereby contributed causatively in this case to the mistaken publication of the print that occurred on 24 July 1999.

The Appeal

[21] The appeal is against the finding of unjustified dismissal and, if that does not succeed, against the order for reinstatement.
[22] The primary ground of appeal is that the Tribunal substituted its own view for that of the employer and that the Employment Court, by effectively adopting the findings and reasoning of the Tribunal, erred similarly. The adoption of this fundamentally incorrect approach constituted error of law which is within the jurisdiction of this Court to correct.
[23] The immediate difficulties confronting the appellant are the express references in the decisions below to the correct approach. As already quoted, the Tribunal decision included reference to three decisions in which the correct test was identified. In his judgment, Judge Palmer set out as one of the “crucial issues”:

Could Mr Oram’s material actions on 21 July and/or subsequently prior to the publication of the front page/lead story and accompanying mistakenly identified photograph in the issue of the Weekend Herald for Saturday, 24 July 1999, comprise, in the perception of a fair and reasonable employer, serious misconduct by Mr Oram as a matter of fact and degree in all the circumstances of this particular case, that is to say “conduct that deeply impairs or is destructive of that basic confidence or trust that is an essential of the employment relationship”?

[24] Mr Miles, for the employer, in his oral submissions contended that although these accurate statements of the law were referred to, it is apparent from the decisions as a whole that the factual assessments were not made in accordance with the correct approach, which he said is exemplified in Iceland Frozen Foods Ltd v Jones [1982] UKEAT 62_82_2907; (1982) IRLR 439, 442 directed to the English equivalent statutory provision for unfair dismissals. In para 24 Browne-Wilkinson J said:

Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law. We consider that the authorities establish that in law the correct approach for the Industrial Tribunal to adopt in answering the question posed by s.57(3) of the 1978 Act is as follows.

(1) the starting point should always be the words of s.57(3) themselves;

(2) in applying the section an Industrial Tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the Industrial Tribunal) consider the dismissal to be fair;

(3) in judging the reasonableness of the employer’s conduct an Industrial Tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

(4) in many (though not all) cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another quite reasonably take another;

(5) the function of the Industrial Tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.
[25] Mr Miles contrasted this with the approach reflected in the concluding paragraph of the Tribunal’s reasons already set out, which did not accept that the correct proportions had been measured nor the relevant factors “weighed correctly”. It was submitted that the Tribunal accepted that the employer did consider the relevant factors but substituted its weighing of them for that of the employer.
[26] On the other hand Mr Little, for Mr Oram, argued that there was no error of law and that the findings made by the Tribunal, and ultimately the Employment Court, were supported by the evidence and were open.
[27] The case is complicated by the fact that, although we were told that argument was addressed to him on the point, Judge Palmer did not separately deal with the complaint that the Tribunal had substituted its own view for that of the employer. Accordingly, he did not address whether it was a course open to the employer reasonably to take the view that dismissal was an available response to Mr Oram’s conduct. There is also the manner in which the Tribunal made its findings without adhering to the approach set for itself as described in para [13] and not dealt with in the Employment Court judgment.
[28] That is not to say that in all cases it is necessary to identify and deal separately with the two issues of the seriousness of the conduct and whether in all the circumstances the employee ought to have been dismissed. In many situations these will involve essentially the same factors.
[29] It is desirable to review the relevant principles. First, in a case involving summary dismissal, it is to be kept in mind that the employer has unilaterally terminated the contract of employment. In the absence of specific contractual powers, that termination can be justified only where there is breach of an express term or one of the terms generally implied in such contracts imposing upon employees obligations of fidelity and to refrain from serious misconduct in the employment. At common law an employee may be dismissed for serious misconduct.
[30] A personal grievance under s27 for unjustifiable dismissal differs in significant respects from an action for wrongful dismissal in breach of contract (see B P Oil N Z Ltd v Northern Distribution Workers Union [1989] 3 NZLR 580, The Board of Trustees of Marlborough Girls’ College v Sutherland [1999] 2 ERNZ 611, Smith v The Christchurch Press Co Ltd CA292/99, judgment 21 November 2000). Nevertheless, a summary dismissal could hardly be justifiable where the employer was not satisfied there was serious misconduct giving rise to an entitlement to dismiss.
[31] While in a breach of contract case an employee alleging wrongful dismissal must establish to the satisfaction of the court that the employer has breached the contract, in a personal grievance, once the employee has established a prima facie case of unjustifiable dismissal, the onus is on the employer to justify the dismissal. The court has to be satisfied that the decision to dismiss was one which a reasonable and fair employer could have taken. Bearing in mind that there may be more than one correct response open to a fair and reasonable employer, we prefer to express this in terms of “could” rather than “would”, used in the formulation expressed in the second BP Oil case ([1992] 3 ERNZ at 487).
[32] The burden on the employer is not that of proving to the court the employee’s serious misconduct, but of showing that a full and fair investigation disclosed conduct capable of being regarded as serious misconduct. This distinction is highlighted in cases involving alleged dishonesty by employees. An employer can justify dismissal without having to prove the dishonesty by showing that, after a full and fair investigation, it was at the time of the dismissal justified in believing that serious misconduct had occurred (Airline Stewards and Hostesses of NZIUOW v Air N Z Ltd [1990] 3 NZLR 549, 552-3).
[33] As this Court said in the B P Oil case already cited (p582):

Counsel for the appellant in this Court disclaimed any contention that a summary dismissal which would be within the employer's rights at common law is ipso facto justifiable for the purposes of the personal grievance procedure, and in particular s210. We accept that approach. It is clear that whether there is misconduct of sufficient gravity to warrant dismissal at common law is not necessarily decisive of whether the dismissal is unjustifiable in terms of the Labour Relations Act. As this Court has said in other cases, questions of procedural fairness and substantive fairness arise in determining whether a dismissal has been unjustifiable for the purposes of the Act. The common law position is certainly relevant but not automatically decisive.

[34] In Northern Distribution Union v B P Oil NZ Ltd [1992] 3 ERNZ 483, 487 this Court said:

For a discussion of the kind of conduct that will justify summary dismissal it is unnecessary to look further than this Court’s judgment in BP Oil NZ Ltd v Northern Distribution Workers Union [1989] 3 NZLR 580. Definition is not possible, for it is always a matter of degree. Usually what is needed is conduct that deeply impairs or is destructive of that basic confidence or trust that is an essential of the employment relationship. In the context of a personal grievance claim under the Labour Relations Act, questions of procedural and substantive fairness are also relevant.

[35] If, in a particular case of summary dismissal, the employer shows that the conduct was such that a fair and reasonable employer could see it as deeply impairing of the basic confidence and trust essential to the employment relationship, it would hardly be necessary to consider, as a separate step, whether in all the circumstances the employee ought to have been dismissed. This assumes, of course, that the fair and reasonable employer did take into account all the relevant circumstances of the conduct and the particular employment relationship in determining that the necessary confidence and trust had been deeply impaired.
[36] Accordingly, in the present case, although it was unconventional for the Tribunal to identify two separate issues yet deal with them as one, we do not consider that in itself resulted in an impermissible approach in the circumstances of this case. However, that leaves the real issue of whether the view of the Tribunal was substituted for that of the employer. The fact that the Tribunal articulated a particular approach yet followed another gives some support to the appellant’s argument that, in this respect also, it did not proceed in accordance with its own instructions. For the reasons that follow we are satisfied that is what occurred.
[37] Certainly there is no specific finding in either the Tribunal decision or the judgment of Judge Palmer that no fair and reasonable newspaper proprietor could regard the conduct of Mr Oram as deeply impairing the confidence and trust between its editors and its senior reporter. Mr Ellis, the Editor in Chief of the Herald, and Mr Harman, the Editorial Manager, gave evidence that they would no longer have trust in Mr Oram nor feel they could rely on him. The decisions in this case finding the dismissal unjustified, did not articulate reasons why no reasonable newspaper proprietor could fairly reach those views.
[38] The three principal reasons given by the Tribunal (and adopted by the Court) for holding the dismissal unjustified were that there had been a procedural failure – a natural justice point, systemic failure by which the employer must bear some responsibility for the mistake and an incorrect weighing by the employer of the relevant considerations. We deal with each of these in turn.
[39] It was said that the attitude of Mr Oram exhibited in the course of the investigation of casting blame on others including the employer, after initially accepting full responsibility, should not have been taken into account in assessing the future employment relationship without his having been given the opportunity to comment. We see no denial of natural justice in this. Mr Oram was given full opportunity to provide his explanation for the mistake. He knew his explanation would be taken into account by his employer in the discipline process. It would be to extend the right to be heard and to answer allegations too far to impose an obligation requiring employers to invite comment upon the assessment of the employee’s explanation or attitude to what had occurred. To do that could lead to an interminable process. We consider there was an error of law in the finding that procedural fairness was tarnished in this case. If the Tribunal had accepted that it was open to the employer to take into account the attitude of Mr Oram during the investigation, we think it unlikely that the same final conclusion would have been reached in what was described as “a finely balanced case”.
[40] The findings in respect of the system employed by the Herald in dealing with photographs appear to have resulted from the Tribunal and the Judge substituting their view for that of the employer. The mistake would not have occurred if Mr Oram had done what he said he reminded himself twice to do, that is to check the photograph at the photo desk. The specific finding of the Tribunal was that he was aware he should have done so. There was no real basis for findings either that no reasonable newspaper would use the system which had been employed by the Herald since at least 1978 and said by the departmental manager to have worked well, or that no reasonable newspaper would rely on a senior reporter to check a photograph in the present circumstances without having issued a formal written instruction that this be done.
[41] The employer took the view that Mr Oram’s failure to check the photograph constituted a failure to exercise appropriate care and responsibility. That could not be said to be a view unavailable to a reasonable employer when the Tribunal found he knew he should have done so. Yet both the Tribunal and the Court held that the Herald should have taken a less serious view of Mr Oram’s conduct because, by its system, it contributed to the mistaken publication. That indicates substitution of their own views for that of the employer in an area of the technical operation of a complex business.
[42] The Tribunal’s findings that those who made the decision to dismiss Mr Oram did weigh certain matters of mitigation but did not weigh them “evenly” nor measure them in the “correct proportions” reveal a balancing of the factors by the Tribunal rather than merely an assessment of whether a fair and reasonable employer could have weighed them in the same way as the appellant. Of course, there cannot be excluded a situation in which an employer claims to have taken into consideration all relevant matters, but actually has reached a conclusion which no fair and reasonable employer could reach. But if this had been regarded as such a case we would have expected the decisions of the Tribunal and the Court to have been framed in clear terms to that effect, rather than in terms of the factors not having been weighed “correctly” against the outcome.
[43] The Tribunal found that the “single act of negligence” should not have “led the [appellant] to conclude that he could not be relied on in the future and ... to conclude that they could no longer trust him to perform his duties diligently”. That is not the same as concluding that a fair and reasonable employer could not have reached those views.
[44] The dismissal might have seemed harsh, but the correct issue was whether it was open to the employer, acting fairly and reasonably, to have seen that as the appropriate response to Mr Oram’s conduct.
[45] This was a case of negligence. There was never any suggestion of wilful misconduct. But a single incident of carelessness, when sufficiently serious, can impair trust and confidence, as the decision of Judge Palmer (cited in the Tribunal decision) in Click Clack International Ltd v Jarvis illustrates.
[46] After an investigation to which there can be no objection, the employer, having regard to the nature of the business of publishing newspapers and the need to rely on reporters for the veracity of information published, which is fundamental to the reputation and credibility of the publication, reached the conclusion that Mr Oram’s conduct in the circumstances meant that he had lost the confidence of his superiors that he could be relied upon in the future. We have no doubt that a fair and reasonable publisher could form that view. It was a view open to the employer, notwithstanding the appellant’s previous employment record with the Herald.
[47] In the result, we have been satisfied that, although referring to the correct approach, the Tribunal did not apply it. Further, the Employment Court did not address the submissions to that effect. In both circumstances that constituted an error of law.
[48] We are satisfied that, on the correct approach, this dismissal was justified.
[49] Accordingly, the appeal is allowed. The personal grievance is dismissed and the order for reinstatement is quashed.
[50] Counsel may file memoranda on costs if necessary.

Solicitors
Kiely Thompson Caisley, Auckland, for Appellant
A J Little, Lower Hutt, for Respondent