Farmer Dismissed for Abusing Cow

A Takaka herd manager fired for abusing cows won his case for unjustified dismissal in the Employment Relations Authority however compensation has been denied by the Employment Court after an appeal by the farm owner.

Nathan Morunga was accused of chasing a cow up an exit race, where it got stuck, before slamming a heavy gate against it in early October, 2013. He kicked the cow and yelled at it.

Authority member David Appleton said in his report that he believed Mr Morunga did abuse the cow and his dismissal was substantially justified. The problem was there were several flaws in the dismissal process and therefore meant it was procedurally unjustified.

The primary flaw was the farm owner, Gregory Fellows, failed to provide witness statements to Mr Morunga either before the disciplinary meeting or before he made the decision to dismiss. Neither witness identified Mr Morunga by name in their statement. If Mr Morunga had seen these letters prior to the disciplinary meeting, he would have been able to ask questions to elicit how a link had been made between him and observed actions contained in the letters.

Had Mr Morunga had that opportunity to question how the connections were made may well have persuaded Mr Morunga to change his position with respect to his denials. This is important because Mr Fellows said that a major factor in deciding to dismiss Mr Morunga was his failure to admit what he had done.

Another major flaw was that there was no signed employment agreement. Mr Morunga had only been provided with a copy of the agreement a week prior to receiving a disciplinary letter – after the incident with the cow had been reported. Included in the long list of examples of serious misconduct in Schedule 1 of the agreement, is, cruelty to animals.

On the face of it, therefore, Mr Morunga was accused of committing an act which Mr Fellows said constituted serious misconduct but which Mr Morunga did not know would be viewed as serious misconduct as he had not received the employment agreement prior to the act taking place.

Mr Appleton said in his report that “under many circumstances, failing to give an employee a copy of their employment agreement so that he or she does not know in advance that a specified action would be treated as serious misconduct, giving rise to the right to summarily dismiss him or her would, on its own, render any dismissal in reliance of that act unjustified. However, there are some acts committed by employees which, in and of themselves, even without that express forewarning set out in the employment agreement, can justify summary dismissal. This is because they, by their very nature, constitute a fundamental breach of contract by the employee, either because of a breach of the implied term of trust and confidence, and/or because of a breach of the duty of good faith owed by the employee pursuant to s.4 of the Act. It is my view that an act of aggression to animals, especially in the context of a dairy farm, falls within that category. I therefore believe that the alleged action by Mr Morunga against the cow falls within the category of serious misconduct which was so obvious that it did not need to be spelled out in advance.”

The Authority awarded Mr Morunga remedies of three months lost wages and compensation of $5,000 with a 50 per cent reduction for contribution.

The Authority decision to award lost earnings was a significant departure from case law that had consistently held that where a dismissal was regarded as unjustifiable on purely procedural grounds that was inappropriate. Mr Morunga’s contribution was assessed as being only 50 per cent, yet a similar case where an employee mistreated a cow was held to have been justifiably dismissed and he was not entitled to any remedies.

Mr Fellows appealed the Authority decision in the Employment Court.

In an Employment Court decision released last week, Judge Bruce Corkill found Mr Morunga should not have received a financial remedy for his personal grievance, as the procedural error did not cause lost remuneration.

Judge Corkill also said Mr Morunga failed to prove his dismissal caused him “humiliation, loss of dignity and injury to feelings.”

“Mr Morunga gave little evidence as to the effects of the dismissal on him, though reference was made to the fact that it had been a life-altering experience, and it had been hard to find new employment,” Judge Corkill said.”

“The court has found no evidence to satisfy it that that any such effects have been suffered.”

Judge Corkill went on to say that “even if there was such evidence, I am satisfied that Mr Morunga’s misconduct when considered in context was so egregious as to lead to a conclusion that this is one of those very rare cases where a 100 per cent contributory finding in respect of such consequences should be made.”

Mr Morunga did not appear at the Employment Court hearing.

Judge Corkill ordered the Registrar of the Employment Court to return to Mr Fellows the $2821 he had been ordered to pay Mr Morunga. He ordered Mr Morunga to pay Mr Fellows $1750 in costs.