News
Balancing the scales of justice
First published in the Independent, 26 June 2008.
Fans of Rumpole will be familiar with the statue that adorns the top of the Old Bailey: the blindfolded woman holding aloft the balanced scales of justice.
From time to time, cynics assert that the symbol is inaccurate. There were those, for example, who proclaimed after the OJ Simpson trial that money could influence the balancing act. And in other cases, it is often claimed that the particular jurisdiction naturally favours one side over another.
One such argument is often made about New Zealand's employment jurisdiction. It is often said that the law inherently favours employees – and that the scales of justice are accordingly tipped in a claimant's favour.
But that is not always the case. Sometimes, despite an employer's failings, the acts of the employee can cause the scales to be tipped back – as a recent case illustrates.
The claimant in Kainuku v Gary Ferguson trading as Man About the House (Employment Relations Authority, Wellington, 9 May 2008 ) was employed as a truck driver. His boss, Gary Ferguson, had worked with his local WINZ office to employ Kainuku.
Ferguson had a licence agreement which allowed him to install insulation into homes. Business was good, and to meet his growing obligations, he needed to employ more staff – including Kainuku.
Kainuku's job was to drive the company truck, and to operate a hopper – which was a machine that was used to distribute the insulation material into houses. Kainuku was being trained in the actual work involved in the installation of the material into house walls – but Ferguson was not happy with the quality of his work, and instructed him to stick to the truck and hopper work.
On 29 May 2007, however, Kainuku attended a job, and took it upon himself to install the material into a customer's ceiling. It was the first and only time Kainuku had undertaken this particular type of work. It ended with disastrous consequences. As a result of the way that Kainuku installed the material, a fire broke out in the ceiling.
The consequences for Ferguson were significant. His licence agreement prohibited him from having untrained staff installing the insulation product. In addition to that, his insurance company had advised him that he would not receive insurance cover if he had untrained staff installing the material.
Ferguson spoke to Kainuku on the next working day. The Authority found that Ferguson had, in advance of this matter, prepared a dismissal letter – and that he terminated Kainuku's employment at this meeting.
The Authority found that Ferguson had failed to abide by the requirements of procedural fairness. He had pre-determined Kainuku's fate – and did not allow him the opportunity to respond to Ferguson's concerns.
The Authority held that a fair and reasonable employer would have provided Kainuku with a fair notice of the meeting, including setting out the allegations against him, and the potential consequences if serious misconduct was proven.
On this basis, the Authority concluded that Kainuku had been unjustifiably dismissed. But that was not the end of the story.
The Authority also found that Kainuku's actions in undertaking work which he had been told not to do – and for which he was untrained – jeopardised both property and life. In addition, he introduced business risk into the situation – because his actions invalidated Ferguson's insurance policy and licence agreement.
Having reached these conclusions, the Authority weighed the scales of justice.
On one hand, it had concluded that Kainuku was unjustifiably dismissed and accordingly, he was entitled to remedies.
On the other hand, Kainuku had committed a serious breach of his employment obligations. That had to be recognised in some way.
In this case, the Authority decided that the fair and reasonable outcome was to deny Kainuku any award of compensation – and, instead, simply to require the employer to contribute to the legal costs which he had incurred by proceeding to the Employment Relations Authority (if the usual Authority tariff is followed, this should result in an award of something like $3,000 to Mr Kainuku – although it is possible that his actual legal costs may exceed this).
In this way, one could argue that the Employment Relations Authority is faithful to the statue adorning the top of the Old Bailey: it weighed the circumstances of this particular situation to find a result which balanced the scales of justice.
