THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT v MA'AUGA TUILAEPA

NZEmpC AUCKLAND [2017] NZEmpC 84 [5 July 2017]

THERE IS AN ORDER PROHIBITING PUBLICATION OF THE YOUNG

PERSON'S NAME OR ANY INFORMATION THAT MAY IDENTIFY HIM

IN THE EMPLOYMENT COURT

AUCKLAND

[2017] NZEmpC 84

EMPC 158/2016

IN THE MATTER OF

a challenge to a determination of the

Employment Relations Authority

BETWEEN

THE CHIEF EXECUTIVE OF THE

MINISTRY OF SOCIAL

DEVELOPMENT

Plaintiff

AND

MA'AUGA TUILAEPA

Defendant

Hearing:

13-16 March 2017

(Heard at Auckland)

Appearances:

S Turner and M Harrop, counsel for plaintiff

G Macdonald, advocate for defendant

Judgment:

5 July 2017

JUDGMENT OF JUDGE K G SMITH

[1] This proceeding is a challenge by the plaintiff to a determination of the

Employment Relations Authority that Ma’auga Tuilaepa was unjustifiably dismissed

and ordering his reinstatement.1

[2] Mr Tuilaepa obtained casual employment with the Ministry of Social

Development (the Ministry) on 4 April 2000 as a residential social worker. He

accepted permanent employment in 2004. A residential social worker provides

1 Tuilaepa v The Chief Executive of the Ministry of Social Development [2016] NZERA Auckland

176.

professional care and protection for children and young persons remanded into the

custody of the Chief Executive of the Ministry or who are sentenced to supervision.2

[3] Mr Tuilaepa was dismissed from his employment on 20 October 2015 for

serious misconduct following an incident on 1 September 2015 with a young person

detained at Korowai Manaaki, a Youth Justice Residential Facility. The Ministry

decided Mr Tuilaepa had used inappropriate and/or excessive force on the young

person (to whom I will refer as YPA)3 and had breached its Code of Conduct (the

Code) and the Children, Young Persons and Their Families (Residential Care)

Regulations 1996 (the Regulations). Mr Tuilaepa maintained he acted in self-

defence and had, therefore, a legal justification for his actions.

[4] An interim order was made prohibiting the publication of the young person’s

name or information that may identify him. That order is now permanent.

1 September 2015 incident

[5] YPA had been admitted to Korowai Manaaki on 19 August 2015. He was 15

years old and this admission was the third time he had been detained in this

residence. He had also been detained in another residence from August 2013 until

January 2014. On this admission to the residence Mr Tuilaepa was appointed as

YPA’s “key worker”.

[6] Each young person detailed at Korowai Manaaki is entitled to make a

telephone call in the evening. On the evening of 1 September 2015 YPA was the

first to make his call and he sat on a chair near the telephone to do so. At the

conclusion of the call he was upset and remained sitting on the chair preventing

others from making their calls. Several times Ms Angel Siau, a youth worker, asked

YPA to move. He did not respond to those requests and was asked by Ms Siau to go

to the time-out room. He did not respond so Ms Siau then dragged the chair, with

YPA still sitting on it, into the time-out room. To some extent YPA was compliant

because he did not attempt to move from the chair while it was being dragged to the

2 For convenience residential social worker and residential youth worker will be referred to as

“youth worker”. 3 “YPA” is used here for consistency with the Authority’s determination.

time-out room. Mr Tuilaepa followed Ms Siau and YPA because maintaining visual

contact between youth workers is a workplace requirement.

[7] Once inside the time-out room Ms Siau asked YPA to get off the chair. He

did not move so she lifted the chair and tipped it forward. As the chair was lifted

YPA stood up and Ms Siau began to take the chair out of the room.

[8] When YPA stood up Mr Tuilaepa was standing in the doorway to the time-

out room blocking YPA’s ability to leave the room. In forthright language YPA

stated he intended to leave the room and, when he did so, was planning to harm

another young person in the residence. That other young person was not named but

Mr Tuilaepa thought the person being referred to was a person YPA had assaulted

about two days before. Ms Siau heard YPA’s remark as she was removing the chair

from the room.

[9] YPA made it clear he intended to leave the room but did not get far. Mr

Tuilaepa had stepped into the room, closing the distance between them, and

continued to block YPA’s exit. He then pushed YPA twice. The first push was

sufficiently forceful to move YPA towards the middle of the room. A second push

forced YPA to the back wall of the room in one corner immediately underneath the

room’s CCTV camera. The position of the camera meant it could not capture

complete images of what occurred in that corner.

[10] While in that corner a violent scuffle ensued. Ms Siau, who was returning

from moving the chair from the room, ran towards the scuffle, which she

subsequently described as Mr Tuilaepa trying to pin YPA against the back wall of the

room. YPA and Mr Tuilaepa were swearing. From Mr Tuilaepa’s body language,

and his swearing, Ms Siau knew he was getting frustrated. Ms Siau tried

unsuccessfully to separate them and later described Mr Tuilaepa as having a “blank

face on”. Ms Siau said she saw Mr Tuilaepa punch YPA while in this corner of the

room.

[11] YPA was forced onto the floor by Mr Tuilaepa. With YPA on the floor the

scuffle moved from one corner to another corner near the doorway. In this location

Mr Tuilaepa was standing above YPA and Ms Siau was attempting to stand between

them by straddling YPA. She called to another youth worker, Mr Regino Antonio, to

summon the Response Team. She told Mr Tuilaepa to stop what he was doing.

[12] During the struggle near the doorway the hood on Mr Tuilaepa’s sweatshirt

either moved up over his head or was pulled there by YPA. In that position the hood

obscured the images captured by the CCTV camera. Those images were also partly

obscured by Ms Siau .

[13] What can be seen on the footage is that, while YPA was on the floor near the

door, Mr Tuilaepa punched him six times. Those punches were admitted by Mr

Tuilaepa but he said they were an instinctive reaction, in self-defence, because YPA

had attempted to gouge his eye using the sweatshirt hood for leverage. The punches

were said to have forced YPA to stop what he was doing. Mr Tuilaepa also said that,

while lying on the floor, YPA attempted to kick him in the groin, so he pinned YPA’s

leg with his own leg.

[14] Towards the end of the scuffle Mr Tuilaepa stomped on YPA’s arm or hand.

He admitted doing that but said his action was necessary because YPA had hold of a

wire connecting his work radio to its ear piece and would not release it. His concern

was that the wire could be used as a weapon and could not safely be left with YPA.

[15] The scuffle was broken up by Mr Sean Wallbank and Mr Kaota Puna, who

were members of the Response Team for that shift. They were required to separate

Mr Tuilaepa and YPA. Mr Tuilaepa was manhandled from the room and prevented

from returning when he tried to do so. After being removed from the room Mr

Tuilaepa kicked the chair that had been removed by Ms Siau.

[16] Mr Tuilaepa completed his shift. Afterwards he went to the secure unit,

where YPA had eventually been placed following the incident, to explain his actions

and to apologise.

Incident reported

[17] The incident was reported to the manager of the residence, Ms Parani Wiki

who gave instructions to ensure that YPA was seen by the on-site nurse, that

photographs of his injuries were taken, and that Ms Siau completed a formal security

incident report.

[18] Mr Tuilaepa attended a meeting with Ms Wiki and Ms Barbara Lautogo (a

Ministry human resources consultant) on 2 September 2015. Mr David Moala, the

Acting Team Leader Operations, attended this meeting as Mr Tuilaepa’s support

person. Ms Wiki outlined her concerns about the events of the night before and

proposed placing him on special paid leave pending the outcome of an investigation.

Mr Tuilaepa agreed to go on leave.

[19] The same day Ms Wiki wrote to Mr Tuilaepa advising him that she was

investigating whether he had used inappropriate or excessive force on YPA.

[20] He was advised:

It is alleged that you have attempted to place [YPA] in an unauthorized

NVCI restraint, punched [YPA] in the face at least twice and then taken

[YPA] to the floor.

It is also alleged that while [YPA] was on the floor, you have stomped on

[YPA].

This alleged incident has resulted in injuries to [YPA’s] head and face.

[21] He was advised that there was CCTV footage that appeared to support those

claims and that it was available for him to watch.

Investigation report

[22] Ms Wiki conducted an investigation by separately interviewing YPA, Ms

Siau and the other youth workers who responded to the incident. The result of this

investigation was a report dated 21 September 2015. In this report, as well as

referring to the issues being investigated, Ms Wiki identified potential breaches of

the Code of Conduct and its requirement for zero tolerance of the abuse of children,

and the Regulations relating to the use of force.

[23] Based on the interviews, Ms Siau’s security incident report and the CCTV

footage Ms Wiki concluded in her report that Mr Tuilaepa used inappropriate and/or

excessive force while restraining YPA, had punched YPA and stomped on him. She

considered the allegation of inappropriate and/or excessive use of force had been

substantiated.

[24] A copy of this report was sent to Mr Tuilaepa by letter dated 21 September

2015. That letter invited him to a disciplinary meeting to discuss the report and

informed him that no decision had been made about the outcome of the allegations.

He was also informed that he would be given an opportunity to provide Ms Wiki

with a full response to the allegations or the report and he would have an opportunity

to provide any other matter he wanted her to consider.

Non-Violent Crisis Intervention

[25] Ms Wiki’s letter of 2 September 2015, and her investigation report, used the

acronym NVCI in describing how she considered Mr Tuilaepa had departed from his

training. That acronym refers to Non-Violent Crisis Intervention, which is a

technique the Ministry has used for about 17 years for handling potentially volatile

situations.

[26] Every youth worker is trained in NVCI. Part of this training is how to

respond to complex situations that can materialise in caring for and detaining young

persons who often have troubled backgrounds. This training emphasises techniques

to avoid physical confrontation. While there is a strong emphasis on identifying

behaviour that risks reaching an unacceptable level, and taking steps before that

occurs, NVCI training provides for appropriate physical intervention where

necessary.

[27] A variety of holds are taught, designed to ensure the young person being

restrained is not harmed and the staff member is not placed at unnecessary risk. This

training emphasises that force is used as a last resort and only provided NVCI-

approved techniques are to be used. In an extreme case blocking or deflecting the

action of the young person is part of the training. This training encourages staying

calm, continuing to talk to the young person, clearing the room, removing unsafe

objects, a “change of face”, walking away and calling the designated Response

Team. “Change of face” is shorthand for one youth worker substituting for another,

to reduce the risk of a situation escalating, and to communicate more effectively with

a young person causing concern.

[28] This training does not teach or use punching, placing a young person on the

floor, or stomping. There was no dispute that approved NVCI techniques were not

used by Mr Tuilaepa during the incident on 1 September 2015.

7 October 2015 meeting

[29] Ms Wiki and Ms Lautogo met Mr Tuilaepa and his advocate, Mr Macdonald,

on 7 October 2015 to provide Mr Tuilaepa with an opportunity to give his response

to the investigation report. He admitted that he had punched YPA six times and

agreed, with the benefit of hindsight, that he might have taken other options to

manage the situation such as calling the Response Team. However, having made

that concession, he relied on a written statement he provided at this meeting which

stated he acted in self-defence.

[30] This reference to self-defence was to part of reg 22 which deals with the use

of physical force on children or young persons in the Ministry’s custody or care.

Under that regulation no member of staff in a residence is able to use physical force

in dealing with a young person unless that member of staff:

(1) … has reasonable grounds for believing that the use of physical

force is reasonably necessary—

(a) in self defence, or in the defence of another person, or to

protect that child or young person from injury …

[31] Under reg 22(2) any person using physical force for any of the purposes

referred to in the regulation is to use no more physical force than is reasonably

necessary in the circumstances and a formal record of the use of that force is

required to be kept.

[32] To explain his reference to self-defence, Mr Tuilaepa’s statement traversed

background information for what had occurred in the time-out room. He justified

preventing YPA from leaving because of a threat posed to the other young person

YPA had stated an intention to harm. That, he stated, was the context in which he

pushed YPA. It was an aspect of self-defence.

[33] Mr Tuilaepa’s statement said YPA threw a punch at him while they were in

the corner near the camera and, in response, he took action to defend himself by

attempting to restrain YPA. This attempt led to YPA being on the floor. Mr

Tuilaepa’s statement said YPA attempted to kick him in or near his groin,

necessitating him having to take action by pinning YPA’s leg with his own leg.

[34] Mr Tuilaepa then gave a detailed explanation of the attempted eye gouge and

how his punches were necessary to force YPA to stop. He acknowledged being

angry and frustrated because the positive work that had been done previously had

dissipated and said he regretted his part in the incident.

[35] There were discrepancies between this statement, Ms Siau’s security incident

report, the interviews with other staff, and what could be seen on the CCTV footage.

For example, Mr Tuilaepa’s description of the action of the Response Team is at

odds with what they said and what the CCTV footage showed. In his statement he

said he was replaced by the Response Team, giving the impression of a co-ordinated

response to address a problem with YPA’s behaviour. However, the CCTV footage

showed the Response Team directing their attention to removing Mr Tuilaepa from

the room.

[36] Ms Wiki was not satisfied. Having watched the CCTV footage she did not

share Mr Tuilaepa’s opinion that YPA’s demeanour was aggressive and considered he

departed from his training. In her view, had Mr Tuilaepa not made contact with YPA

first, and simply backed away, YPA would not have been on the floor trying to

defend himself. She considered staff are trained to deal with being challenged and

YPA was not an imminent threat.

[37] Ms Wiki did not accept that YPA had attempted to gouge Mr Tuilaepa’s eye

and could not see any attempt to do so on the CCTV footage or any sign of injuries

on Mr Tuilaepa. She asked Mr Tuilaepa if he had completed a security incident

report about the eye gouge but he had not done so. Nor had he been to a doctor.

[38] Ms Wiki agreed to reconsider the CCTV footage at Mr Tuilaepa’s request and

in light of his statement. Having done so, her opinion did not change. She decided

nothing indicated he had to defend himself from YPA and that he had several

opportunities to leave the room.

[39] Ms Wiki does not have a delegation entitling her to dismiss so she advised

Mr Tuilaepa that the matter would be referred to the General Manager, Residential

and High Needs Service, Ms Nova Banaghan, for consideration. By letter dated 12

October 2015 Mr Tuilaepa was advised that the matter had been referred to Ms

Banaghan to consider whether his actions constituted serious misconduct. He was

informed that any disciplinary action that may follow could include dismissal. In

that letter Mr Tuilaepa was told that the purpose of the meeting was to give him an

opportunity to provide Ms Banaghan with his response to the allegations, including

any matter he would like her to consider.

[40] The same day Ms Wiki sent a detailed report to Ms Banaghan and copied it to

Mr Tuilaepa.

Report to Ms Banaghan

[41] Ms Banaghan is a registered social worker who had been employed by the

Ministry, and its predecessors, for 19 years. She was aware of the incident on 1

September 2015, having been informed of it by being copied into an email of the

same date from Ms Wiki to Ms Lautogo and by a telephone call on 2 September

2015.

[42] Ms Wiki’s report to Ms Banaghan described the incident in detail and

covered the meeting of 7 October 2015. Copies of all of the material available at

that meeting were included. Ms Wiki captured the nature of the disciplinary matter

Ms Banaghan was to decide as an allegation that Mr Tuilaepa had breached both the

Regulations and the Code by the use of inappropriate and/or excessive force, the use

of an unauthorised restraint and a physical assault, relating to punches to the head

and body (at least six times), of YPA in care.

[43] Ms Wiki included a comment in her report on Mr Tuilaepa’s reliance on self-

defence. She acknowledged he may have needed to defend himself once the

altercation escalated but gave her opinion that the initial physical contact was

preventable and avoidable.

[44] Ms Wiki ended her report by stating two options she considered were

available to Ms Banaghan. The first option was to dismiss Mr Tuilaepa. The second

option was to issue a final written warning, but she noted that taking this option

would treat Mr Tuilaepa inconsistently with other staff members who had been

dismissed for similar breaches of the Code.

16 October 2015 meeting

[45] By arrangement Ms Banaghan and Ms Lautogo met Mr Tuilaepa and Mr

Macdonald on 16 October 2015. Before this meeting Ms Banaghan read Ms Wiki’s

report, and the accompanying material, and watched the CCTV footage.

[46] At this meeting Ms Banaghan explained that an opportunity was being

provided for Mr Tuilaepa to supply anything he wanted her to consider and to clarify

any matters he felt needed to be addressed before she made a decision. She advised

him that, at the end of the meeting, a preliminary decision would be made if she

considered any disciplinary action appropriate.

[47] Mr Tuilaepa provided another written statement which Ms Banaghan and Ms

Lautogo took a break to read. The statement was lengthy and detailed. It contained

comments about s 103A(3) of the Employment Relations Act 2000 (the Act) and

about procedural fairness in disciplinary cases. It criticised Ms Wiki’s report as

predetermining the outcome of the investigation and not satisfying s 103A(3) of the

Act.

[48] The thrust of this statement was that Mr Tuilaepa had a response to the

allegation that he had used inappropriate or excessive force but his response had not

been considered, or adequately considered, by Ms Wiki. Her report was criticised

for inadequately dealing with self-defence because it lacked analysis of that defence

and legal advice had not been sought about it. Other deficiencies in Ms Wiki’s

report and investigation were also claimed.

[49] Over several pages Mr Tuilaepa described what happened during the incident

to explain he had acted in self-defence. His statement included a legal analysis of

that defence.

[50] In this statement he again admitted pushing YPA, and punching him, but

denied punching him when they were both in the corner near the camera. He

repeated his explanation for partly visible motions on the CCTV footage of the

activity in that corner as his attempts to block punches from YPA.

[51] Mr Tuilaepa accepted YPA was held on the floor, but said YPA continued to

fight and attempted to kick him in the groin area, which explained and justified using

his leg to try to pin YPA’s leg.

[52] He repeated what was said to Ms Wiki about an attempted eye gouge,

admitted stomping on YPA’s arm or hand, and repeated his explanation for that

action.

[53] After Mr Tuilaepa’s statement had been read the meeting resumed and the

CCTV footage was watched. It was slowed down, paused and rewound as the

incident was discussed. While watching the footage Mr Tuilaepa indicated the

points where, he said, YPA attempted to eye gouge him and kick him.

[54] Ms Banaghan was not convinced by these explanations. She expressed her

concern to Mr Tuilaepa that he had escalated matters and told him what she saw did

not look like self-defence. She could not see any attempt by YPA to kick Mr

Tuilaepa in the groin. At no point did it appear to her that Mr Tuilaepa attempted to

remove himself from the situation or to use an approved NVCI restraint. To her the

footage showed Mr Tuilaepa punch, push, grab and kick YPA.

[55] She put to Mr Tuilaepa, for his explanation, that pulling YPA onto the ground

was not an approved NVCI restraint and was a breach of procedure. In reply he

simply reiterated that he acted in self-defence.

[56] After watching the CCTV footage another break was taken. When the

meeting resumed Ms Banaghan told Mr Tuilaepa that, in her opinion, he had a

number of pathways open to him and he did not take the appropriate one. Mr

Tuilaepa was asked to comment about Ms Siau observing in her security incident

report that he had “lost the plot”. He did not reply. Ms Banaghan went through the

events as she saw them on the footage, saying why she felt unable to accept that this

conduct could be justified as self-defence. At the end of the meeting Mr Tuilaepa

was asked if there was anything more he wanted to add. He did not add anything

more.

[57] Mr Tuilaepa’s claim of self-defence was rejected by Ms Banaghan. She

decided he had lost control of himself and did not act in accordance with his training

or the Ministry’s expectations. Explaining her conclusion she said in evidence:

… Given the training and his years of experience I do not accept his conduct

in pushing the young person, engaging in a physical interaction, failing to

call for help or making any attempt to extricate himself from the situation

was justifiable. Mr Tuilaepa may have gone in to the room with good

intentions, however, at that point he lost control and he assaulted a young

person who was in care. It was concerning to see that the Response Team

was required to drag him off the young person. It is vital that our employees

do not put themselves at risk, but here, it is my view the young person was at

risk and it was the employee that caused the risk in this situation.

[58] Given the seriousness of the conduct, and the continued insistence that he

was acting in self-defence, Ms Banaghan decided she did not have trust and

confidence in Mr Tuilaepa. Her preliminary decision was to dismiss Mr Tuilaepa for

serious misconduct, which decision she relayed to him at the end of the meeting.

[59] Mr Tuilaepa did not take up the opportunity provided to him to supply any

further information to Ms Banaghan that he wanted her to consider and her

preliminary decision was confirmed as the final decision by letter dated 20 October

2015.

Mr Tuilaepa’s dismissal

[60] In Ms Banaghan’s letter she decided the allegations Mr Tuilaepa had used

“inappropriate and/or excessive force and attempted an unauthorised NVCI restraint”

were proved and that he had failed to provide the required standard of care for a

young person in a residence.

[61] She summarised what had been discussed during the 16 October 2015

meeting and recorded Mr Tuilaepa’s explanations including that his actions were in

self-defence. She concluded that the force used was not acceptable in any

circumstances.

Analysis

[62] The plaintiff’s case is that Ms Banaghan’s decision to dismiss was based on

reliable evidence available to her to conclude that serious misconduct had occurred.

Ms Turner, counsel for the Ministry, submitted that the decision was made after a full

and fair investigation during which Ms Banaghan possessed sufficient information to

be able to conclude that Mr Tuilaepa had used inappropriate and/or excessive force

in breach of the Regulations and the Code.

[63] Mr Macdonald submitted that the decision was unjust because the inquiry by

Ms Wiki was poor and, because it was poor, there was no proper evidential or legal

basis for the decision. He was critical of the way in which the initial investigation

was handled and submitted those deficiencies tainted the decision-making by Ms

Banaghan.

[64] Several deficiencies were alleged. The one central to Mr Tuilaepa’s case was

that the consideration of self-defence was inadequate because Ms Wiki and Ms

Banaghan failed to grasp the legal aspects of that defence and had not undertaken

follow-up interviews with staff who may have been able to support what Mr

Tuilaepa had said. In relation to self-defence, Mr Macdonald submitted that Ms

Wiki had not asked a sufficient number of relevant questions of Mr Tuilaepa to

assess his state of mind at the time force was used and, instead, focused on whether

he had applied force. It was also submitted that insufficient weight was given to the

behaviour of YPA leading up to the incident and to the action, or lack of action, of

the rest of the staff employed in that unit on the night of the incident.

[65] Disproportionate weight was also said to have been placed on what could be

seen on the CCTV footage and, because what was visible was unfavourable, the

thorough investigation that should have been undertaken given the resources

available to the Ministry was not undertaken. Essentially, this point is that both Ms

Wiki and Ms Banaghan were misled by the graphic nature of that footage and failed

to take into account or consider adequately what Mr Tuilaepa said he was doing and

why.

[66] The issue is whether the employer’s decision satisfies the test for justification

in s 103A of the Act. Section 103A was considered in Angus v Ports of Auckland Ltd

(No 2).4 The Court must determine what a fair and reasonable employer could have

done, and how a fair and reasonable employer could have done it, in all the relevant

circumstances at the time at which the dismissal occurred.5 That assessment is an

objective one. That requires considering the circumstances of the employer, the

employee, the nature of the employer’s enterprise, and any other relevant

circumstances.

[67] Ms Turner emphasised the working environment at the residence was critical

when considering the application of s 103A of the Act because it places into context

how the Ministry provides for young people in custody or care. Inevitably, there was

an imbalance of power between YPA and Mr Tuilaepa, created by the circumstances

4 Angus v Ports of Auckland Ltd (No 2) [2011] NZEmpC 160, [2011] ERNZ 466.

5 At [58].

of YPA’s detention. YPA had been detained, comes from a challenged background,

had been identified as being at risk of self-harm and had been diagnosed as suffering

from ADHD. Mr Tuilaepa knew about those problems because he was assigned as

YPA’s “key worker”, meaning he had a special role to play in dealing with YPA

including being familiar with his circumstances.

[68] Ms Turner submitted that justification for this dismissal could be established

by demonstrating a breach of the Code, relying on Chief Executive of the

Department of Inland Revenue v Buchanan,6 or a breach of the Regulations.

[69] As to the use of force, she submitted that what occurred was inappropriate

because:

(a) Regulation 22 and the Code make it clear that no physical force, other

than that reasonably necessary in the circumstances, was to be used;

and

(b) the force used was a departure from NCVI training which the

Ministry regarded as the only proper means of physical force to be

used in dealing with a young person in a residence.

[70] Ms Turner submitted that a foundation for deciding Mr Tuilaepa was guilty of

serious misconduct was provided through Ms Wiki’s investigation and the

subsequent meetings in which Mr Tuilaepa participated fully.7 Ms Banaghan

properly assessed the facts and reached conclusions that were open to her including

being able to reject what Mr Tuilaepa said about self-defence. That is because an

employer is entitled to structure an approach around what was referred to in A Ltd v

H as the “inherent implausibility” of the defendant’s arguments regarding an

innocent purpose and, in that case, what was said to be accidental touching.8

6 Chief Executive of the Department of Inland Revenue v Buchanan [2005] ERNZ 767 (CA).

7 See Lawson v New Zealand Transport Agency [2016] NZEmpC 165 at [166], citing Air Nelson

Ltd v C [2011] NZCA 488, (2011) 8 NZELR 453. 8 A Ltd v H [2016] NZCA 419, [2017] 2 NZLR 295 at [38].

[71] By the time the meeting on 16 October 2015 concluded Ms Banaghan had

available to her, and had considered, a substantial body of evidence about what had

occurred, gathered through the initial investigation by Ms Wiki and as provided by

Mr Tuilaepa. She had two statements from him explaining what had happened.

Both of them relied on self-defence, claiming that at the beginning of the incident he

was acting in defence of others and, towards the end, to defend himself.

[72] Ms Siau’s security incident report described Mr Tuilaepa’s actions as

aggressive and included evidence that she saw him punch YPA before placing him

on the floor. That report was consistent with the interview given by Ms Siau on the

day following the incident. It was consistent with the interview with YPA in which

he said he had been punched twice before being placed on the floor. Ms Banaghan

could see CCTV footage that provided a good view of most of the incident. The

CCTV footage showed Mr Tuilaepa initiating physical contact by forcefully pushing

YPA backwards into the time-out room. She could clearly see the punches Mr

Tuilaepa admitted delivering and there were images of Mr Tuilaepa engaged in a

punching motion while in the corner under the camera. This was supported by what

had been said by Ms Siau and YPA. Mr Tuilaepa admitted stomping on YPA and Ms

Banaghan could also see him doing that on the footage and being manhandled from

the room.

[73] Ms Banaghan knew that pushing and punching do not comply with any

NVCI training. She had the advantage of being able to consider the CCTV footage

and, by doing so, to assess the demeanour of YPA. Prior to the pushes, that CCTV

footage did not show YPA exhibiting an aggressive demeanour, something

acknowledged by Mr Tuilaepa when questioned in cross-examination.

[74] Ms Banaghan could also see from the footage the point where Mr Tuilaepa

claimed YPA attempted to punch him and kick him in the groin area. The images on

the footage did not persuade Ms Banaghan that there had been an attempted kick.

Those images were clear ones.

[75] An employer does not have to accept uncritically what is said by an

employee.9 Ms Banaghan decided that what Mr Tuilaepa said was not credible

because it was inconsistent with the information she had and what could be seen on

the CCTV footage. Ms Banaghan rejected what was said by Mr Tuilaepa and she

was entitled to do so.

[76] Although Mr Macdonald submitted that it was deficient for the Ministry not

to obtain legal advice about self-defence, the statement supplied to Ms Banaghan did

contain a legal analysis of that defence. She did not put aside self-defence without

adequately considering it. While she may not have broken down her consideration

of that defence into constituent parts, as might have happened in a legal analysis, she

understood Mr Tuilaepa wanted to have her consider that defence. Her questions to

him did, in fact, investigate what he believed the circumstances to be leading up to

and during the scuffle and he had included them in his written statements. She was

dissatisfied with his answers.

[77] I reject the submission that Ms Banaghan declined to consider self-defence

because of the content of the meeting notes which referred to that defence being a

matter for the Police. The notes referred to were not verbatim and I accept Ms

Banaghan’s evidence that what was recorded was her statement that she was

explaining that a different standard of proof would apply to her investigation

compared to any Police investigation.

[78] By relying on self-defence Mr Tuilaepa invited Ms Banaghan to look at

isolated parts of the incident rather than to evaluate the whole incident.

Concentrating on why Mr Tuilaepa pushed and punched YPA six times is too limited

and does not take into account the totality of the scuffle Ms Banaghan was

considering in deciding if inappropriate and/or excessive force had been used. Self-

defence did not explain either push because they were excessive and inconsistent

with NVCI training. Had it been necessary to keep YPA in the time-out room a

technique other than pushing could have been used consistent with Mr Tuilaepa’s

training. Ms Banaghan had evidence from which she could reasonably conclude that

9 A Ltd v H, above n 8.

more punches had occurred than Mr Tuilaepa admitted and that the number of

admitted punches was a disproportionate and excessive action in any event.

[79] Ms Banaghan was entitled to be sceptical, and to reject the claim, that Mr

Tuilaepa was continuing to defend himself and others when he stomped on YPA.

Saying that the radio wire might have been used as a weapon overlooks what was

happening at the time the stomp occurred. Other youth workers were in the time-out

room or nearby, the Response Team was on its way, and YPA was on the floor. The

stomp alone was sufficient to justify Ms Banaghan’s decision.

[80] That evidence was sufficient for Ms Banaghan to conclude that Mr Tuilaepa

had breached the Regulations and the Code. I find that dismissing Mr Tuilaepa for

inappropriate and/or excessive use of force or a departure from his NVCI training

was what a fair and reasonable employer could have done in all of the circumstances

at the time.

[81] Mr Macdonald’s submissions were critical of the way in which the Ministry

conducted its inquiry into this incident. The relevance of the adequacy of the

employer’s inquiry is illustrated by De Bruin v Canterbury District Health Board.10

In that case the Court considered the dismissal of an experienced mental health nurse

who had slapped a patient’s face. The inquiry was so deficient that there was no

reliable evidence upon which an employer could have concluded that the nurse’s

behaviour warranted dismissal.

[82] The way the Ministry went about its investigation was fair and reasonable.

Mr Tuilaepa knew and understood what was being investigated and was able to fully

participate in the investigation. In advance of both meetings he knew what was to be

discussed and had copies of the materials to be relied on or considered.

[83] I do not accept the submission that Ms Wiki had a closed mind to Mr

Tuilaepa’s explanations despite the way she wrote her investigation report. While it

was not ideal to express views about the incident in the way she did before

interviewing Mr Tuilaepa, it is obvious from her letter of 21 September 2015 that

10

De Bruin v Canterbury District Health Board [2012] NZEmpC 110, [2012] ERNZ 431.

she was prepared to listen to and consider what he had to say. From the notes of the

meeting on 7 October 2015, it is apparent that a detailed conversation took place in

which she asked him why he used force and he offered a detailed explanation. She

considered his explanation and included it in her report.

[84] I find that Ms Wiki did not pre-determine the outcome of her report or

deprive Mr Tuilaepa of an opportunity to be heard. Even if some criticism might be

made about Ms Wiki’s investigation, the meeting with Ms Banaghan provided Mr

Tuilaepa with an opportunity to fully address the allegations and he knew she would

make a decision about his employment.

[85] It was not deficient for Ms Wiki and Ms Banaghan to decide not to conduct

follow-up interviews. At best this criticism was speculative. Mr Macdonald

submitted that Mr Antonio ought to have been interviewed again after Mr Tuilaepa

said there was an attempted eye gouge. The basis for this submission was that Mr

Antonio looked into the time-out room and may have seen what happened. Mr

Antonio did look into the room, but only very briefly, before being diverted to deal

with other young people attracted to what was happening. There is no evidence that

Mr Antonio could have seen, or did see, an attempted eye gouge. Even if that

evidence had been available it would not have explained the balance of Mr

Tuilaepa’s conduct.

[86] Mr Macdonald’s submission that Mr Moala and Mr Kepu, who provided

NVCI training, should have been interviewed is misplaced. Mr Moala did not go to

the time-out room during the incident and could not add anything constructive.

Likewise Mr Kepu did not witness the incident and all he may have added was an

opinion about the absence of NVCI techniques. Even if I had been persuaded that

they should have been interviewed it is difficult to see how that might have changed

the outcome which was based on the whole incident.

[87] All of the information available to Ms Wiki and Ms Banaghan was supplied

to Mr Tuilaepa in advance of each meeting. Despite submissions to the contrary,

there was an adequate opportunity for Mr Tuilaepa to review the CCTV footage

before the meeting on 7 October 2015, during that meeting, and in the meeting on 16

October 2015. He had sufficient time before those meetings to prepare written

statements that carefully and fully set out his responses.

[88] There was no successful challenge to Ms Banaghan’s evidence that she

determined to reach her own decision regardless of the recommendation made by Ms

Wiki. What that meant was Mr Tuilaepa had a further opportunity to reflect on what

had been said previously, to make a further statement, and to generally make

representations to Ms Banaghan about what had happened.

[89] Finally, I do not consider the process to have been flawed because the

behaviour of YPA was not adequately taken into account. That submission shifts the

focus away from the investigation of Mr Tuilaepa’s conduct towards a young person

in his care whose personal circumstances were known to him. The submission that

YPA had a violent history overstates his behaviour at Korowai Manaaki and fails to

recognise that the Ministry’s information, known to Mr Tuilaepa, was that the

potential YPA presented for violence was a concern about self-harm.

This case is different from De Bruin.11

In this case there was sufficient inquiry that

provided evidence from which the employer could reach a decision open to it. A

significant difference between De Bruin and this case is compelling CCTV footage.

Conclusion

[90] Mr Tuilaepa was justifiably dismissed. Having reached a different

conclusion from the Authority the determination is set aside and this judgment stands

in its place.

[91] It also follows that the stay of proceedings previously granted may no longer

be required and, if necessary, leave is reserved for either party to seek orders about it.

11

De Bruin, above n 10.

[92] Costs are reserved. In the absence of agreement, the plaintiff may submit a

memorandum within 20 working days. The defendant has a further 20 working days

to respond.

K G Smith

Judge

Judgment signed at 10.30 am on 5 July 2017