Ron Massey took his case to the Employment Relations Authority
(ERA), claiming he was unjustifiably dismissed from his position as the council’s economic development manager.
The comments which led to his sacking were among several allegations made against Massey, and included derogatory comments about the failed art deco buses as well as remarks the council had made a mess of Marine Parade.
Massey also claimed that he was unjustifiably suspended, and that the council took unwarrantable actions by removing responsibilities from him without consultation.
Authority member Trish McKinnon heard the case on Tuesday in Napier.
Wayne Jack, the council’s chief executive, reportedly told the hearing he had received several complaints in February last year about Massey’s comments to others and comments he had made during a meeting.
Jack said that he felt the way Massey’s comments had been made brought the council into disrepute, but Massey’s lawyer, Tony Snell, argued that Massey was merely expressing his opinion frankly and honestly in a meeting that was not public.
Jack added that Massey had used “racial undertones” when discussing a family from Flaxmere that had used the public barbecues and fountain on Marine Parade.
Snell countered that nothing in Massey’s comments mentioned race.
Hawke's Bay Tourism manager Sally Jackson told the hearing that she agreed that Massey’s comments had “racist undertones” and that he was “implying people who lived in Flaxmere were dirty and needed to wash in the fountains”.
She said that the comments “seemed racist” to her, which made her feel “uncomfortable”.
The authority member queried why Jack had not confronted Massey and given him an opportunity to respond to the allegations against him before suspending him.
Jack admitted that his initial findings of serious misconduct had been based on hearsay.
“Individuals can legally be sacked for “serious misconduct” based on hearsay, providing that the evidence is sufficiently compelling,” Blair Scotland, partner at Dundas Street Lawyers told HRM
. “True hearsay evidence, which might be evidence from someone who wasn’t at the particular meeting, should be treated with suspicion, particularly if it is the only evidence of wrongdoing. Hearsay evidence backed up with enough other evidence may be enough to meet the evidentiary threshold of the balance of probabilities, but there would need to be solid grounds for the employer not getting evidence from eye witnesses. Evidence from eye witnesses to the particular events will usually be seen as more reliable than hearsay evidence.”
Scotland added that comments made in a private meeting have the potential to be grounds for dismissal.
“The key is whether or not those comments mean that a fair and reasonable employer could lose trust and confidence in the employee making them,” Scotland explained. “Making derogatory comments about your employer, albeit in a non-public setting, may irreparably damage that trust and confidence. The context is going to be all important, as well as what was said and to whom. If an employer has asked people however to give their honest views, and no public damage is done, it could be difficult to justify dismissal if the employer doesn’t like what it hears.”
The hearing is still underway.
A former senior manager at Napier City Council is in court today seeking compensation for lost income after he was sacked for making insulting comments about the council and the city.