Police fail to overturn reinstatement order

Despite the fact that Mr Hawkins, who was a sergeant stationed at Taumarunui, voluntarily disengaged (or "perfed") from the Police, the Employment Court upheld his constructive dismissal claim. To rub salt into the wound, the Court then ordered the Police to reinstate him, even though seven years had passed since his departure.

In what looks likely to be the culmination of a long running court battle, the Court of Appeal has now dismissed an appeal by the Commissioner of Police.

Mr Hawkins had applied to disengage from the Police on medical grounds in May 2001, the day after the police commenced an inquiry into allegations that he had assaulted two young men in the police cells on 4 March 2000. He was prosecuted but discharged at trial because of conflicts in the evidence, and received a lump sum payment of $228,000 for statutory discharge from service.

Subsequently, Mr Hawkins raised a personal grievance, saying he was bullied into seeking disengagement. It transpired he had earlier told the Area Controller that a certain detective sergeant was a bully. Despite an assurance of confidentiality, the area controller revealed the complaint to the detective sergeant, whose behaviour towards Mr Hawkins apparently worsened.

When the assault allegations were made, the same detective sergeant was appointed to investigate. To make matters worse, an inspector told another sergeant that he was surprised Mr Hawkins was still in the country, that the community would not put up with him returning, and that it would be foolish for him to defend the charges. The sergeant reported this to Mr Hawkins, who then sought disengagement and later brought a constructive dismissal claim.

The Employment Court said the fact that he had sought disengagement did not bar him from bringing a claim for constructive dismissal. It upheld that claim, saying his treatment at the hands of the Police destroyed the relationship of trust and confidence. In a subsequent remedies hearing, the Court ordered the Police to reinstate Mr Hawkins, even though over 7 years had passed since he had left.

The Court essentially said the time gap was only relevant if it suggested that reinstatement would not be practicable. The Police had not shown it was not practicable. He would have to undergo tests and retraining, but this was not a sufficient obstacle. It also ordered the Police to pay him lost income over the 7 years since his departure, and in a notably high award, it ordered the Police to pay him $35,000 compensation for hurt and humiliation.

The Court of Appeal refused to interfere with the reinstatement order. It said that the fact Mr Hawkins had "perfed" did not mean that reinstatement was not possible. It also refused to overturn the order that the Police pay $35,000 hurt and humiliation, even though it had said in a previous case that $20,000 was "at or near the upper end of the permissible range".

At first glance, it seems surprising that someone who perfed and then sued the Police would be reinstated after a gap of 7 years. However, the statutory test is not how much time has passed, but whether reinstatement is practicable. On that measure, the Police were not able to show why Mr Hawkins should not be reinstated.

 

Greg Cain

Greg Cain is an employment lawyer at Minter Ellison Rudd Watts.

 

 

Photo:Bay of Plenty Times