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Employment Law
19 Apr 2011
A Recent Case Calls into Question an Employer’s Right to Set its Workplace Standards
The Employment Court's recent decision in C v Air Nelson casts real doubt over the extent to which the Court will truly allow an employer to reach its own decision about the behaviour that it considers acceptable in its workplace. In this case, the Court was highly critical of all of Air Nelson's serious misconduct findings, despite acknowledging that they were made after a thorough investigation.
Background Facts
C, the plaintiff in the Employment Court and an Air Nelson captain, was dismissed for serious misconduct and applied to the Court for reinstatement.
The events leading to his dismissal arose when C, his First Officer and a 19 year old female flight attendant were forced to stay overnight in Napier due to bad weather. On the way to their hotel, they stopped at a supermarket where C and the First Officer bought four bottles of wine and a six-pack of beer.
After arriving at the hotel all three met in C's room for drinks, wearing only hotel robes over their underwear, as they had no overnight clothes. While there, they engaged in what was described as "smutty talk", showed each other tattoos and body piercings, and some "spanking" occurred. For a time, all three lay in bed together watching TV before the First Officer went to his adjoining room to bed sometime after midnight.
Early the next morning the flight attendant, in a distressed state, called two friends, one of whom then picked her up from the hotel. She said that she had no memory of what had happened from around midnight until early the next morning when she woke up naked in C's bed. Sex had occurred overnight and, in these circumstances, she made a complaint to the police, along with a complaint of sexual harassment to Air Nelson.
Air Nelson's decision
Following a lengthy enquiry, Air Nelson reached the conclusion that C was guilty of serious misconduct given:
- The quantity of alcohol he had purchased and consumed, which Air Nelson found was irresponsible and unacceptable for a pilot;
- That sex had occurred between C and the flight attendant, which was unwelcome to the flight attendant and constituted sexual harassment; and
- His overall "failure to discharge his responsibilities as a Captain" by setting an "inappropriate leadership example".
In reaching these conclusions, Air Nelson took note of the fact that C had failed to express remorse or contrition, or acknowledge any responsibility for his actions. It concluded, in all of the circumstances, that it could no longer have trust and confidence in C, and that he should be dismissed.
Employment Court's Decision
The Employment Court found against Air Nelson and reinstated C.
In reaching its decision, the Court discounted Air Nelson's findings, concluding that C's account was more credible. It put a great deal of weight on the fact that the police had decided not to press charges (and, indeed, went so far as to conclude that this meant the complaint was "without substance"). The fact that the flight attendant had taken the step of referring the matter to the police, and making a formal complaint, did not sway the Court, although this could be taken to support her account.
Air Nelson had also relied on the evidence of the flight attendant's immediate distress after the incident, which resulted in her calling a friend to pick her up in the early hours of the morning. Air Nelson found that this suggested that the sex was unwelcome, and supported her account. The Court disagreed and, went further again, finding the flight attendant had deliberately "seduced" C.
The Court relied on the First Officer's account of events, as tending to support C's version of what had happened during the early part of the night (eg, the sexual banter and display of body piercings). However, the First Officer's account did not extend past midnight, when he went to bed. This, of course, was the crucial time period, but the Court appears to have been satisfied that by engaging in sexual banter and other such behaviour earlier in the night, the flight attendant must have intended to seduce C later in the night.
The Court was not swayed by Air Nelson's evidence that C's conduct had fallen short of its expectations of a Captain, who must set the standard and act as a role model for crew.
In relation to the question of C's lack of remorse, the Employment Court found that there was "an element of unfairness if [Air Nelson] based their decision to dismiss partly on the fact that C had not...made a soul searching expression of remorse and contrition". The Court held that if an apology would have resulted in less drastic disciplinary measures, Air Nelson should have given an indication of that during the investigation process.
The Court went on to hold that Air Nelson's acknowledgement that the outcome may have been different had C expressed some remorse or insight, must have "considerably weakened" Air Nelson's confidence that it had sufficient grounds to dismiss C. This is a somewhat surprising finding in light of cases such as X v Auckland District Health Board, in which apologies or expressions of remorse have been considered to be relevant when the employer comes to consider whether dismissal is the appropriate outcome.
Implications for employers
This case has given rise to significant public discussion about the extent to which the Court is able to disregard Air Nelson's findings about whether C's conduct was acceptable.
However, from 1 April 2011, the test for justification of dismissals under section 103A of the Employment Relations Act changed. Arguably, the new test (what a fair and reasonable employer could do in the circumstances) will allow employers more scope to make their own decision about whether dismissal is warranted, and what factors they consider in reaching that conclusion.
In the meantime, on the question of expressions of remorse, employers with concerns that an employee has not apologised or acknowledged wrongdoing, would be well advised to raise this with the employee, so that they are aware it is being taken into account. Of course, as the Court recognised in this case, the employer will need to consider the genuineness of any assurances or apology given, after such concerns are raised.
Authors
Charlotte Bates
Senior Associate - Employment
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Carl Blake
Senior Associate - Dispute Resolution
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Katherine Burson
Senior Associate - Employment
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Lucy Jenkins
Senior Associate - Employment
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In This Article:
The plaintiff in the Employment Court and an Air Nelson captain, was dismissed for serious misconduct and applied to the Court for reinstatement. The events leading to his dismissal arose when the plaintiff, his First Officer and a 19 year old female flight attendant were forced to stay overnight in Napier due to bad weather.
