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Putting in the boot

By Scott Wilson, Partner and Josephine Toop, Solicitor

First published in the Rural News, 24 June 2008

Animal welfare is listed by Federated Farmers as a policy issue, which is hardly surprising.  Maintaining high standards in animal welfare has helped New Zealand achieve recognition as a leading producer of primary products.

But occasionally animal welfare issues form the backdrop to claims in the employment tribunal (the Employment Relations Authority).  A relatively recent example concerned a farm worker, Bruce Haussman. 

Mr Haussman was dismissed by the farm owner/employer (the Smiths) for repeatedly beating a cow with a piece of alkathene pipe (in conjunction with earlier racial abuse/threats to a colleague).  The distressed cow jumped the rail and injured herself, requiring veterinary attention for a deep puncture wound in her left hind leg.  After this incident, Mr Haussman was briefly suspended and then dismissed for serious misconduct. Mr Haussman challenged his dismissal in the Authority.   In a common-sense decision, his claim failed.

The Authority accepted a distinction between a whack on the rump to get a cow moving (Mr Haussman’s argument), and a repeated beating.  A witness, whose account was assessed to be credible, said that Mr Haussman was administering full bodied hits while yelling and screaming at the cow. The cow was terrified, he was still hitting her when her leg was trapped by the rail and saying “go on you stupid bitch, break your leg.”  The fact that the use of alkathene pipe to assist the management of cows was discouraged by the Smiths, who had a conscious policy of treating their animals gently (although use of pipes was not actively prohibited) was also relevant.

The Authority said that if a farm worker was found to have physically abused an animal in his or her care, this would constitute serious misconduct and could result in summary/instant dismissal (after following a proper process). The Authority said that “it is hard to imagine a more serious offence in a farming situation than the wanton cruelty to an animal.”

Some aspects of the process followed were not ideal. Mr Haussman was dismissed after a short investigation (the cow’s beating occurred around 7.30am and he was dismissed around 10.15am) and he was not advised to seek advice.  However, after reflecting on the remoteness of the farm (and, therefore, the difficulty in either party obtaining advice) and the particular circumstances of the allegations (including tension between Mr Haussman and others, and the possible risk or further risk to the animals), the Authority felt urgent action was appropriate.  The Authority was satisfied that Mr Smith had talked to the principal protagonists and given each an opportunity to be heard, and that if legal advice had been obtained the result would have been the same, though somewhat delayed.

Does this reveal a triumph of pragmatism over black letter law? There may be some sympathy for employers, where cases of animal abuse provide the basis for dismissal. However, employers should be wary – this decision represents the approach of just one decision-maker in a first-instance forum. It certainly does not mean that different rules for procedural fairness apply to farm owners/employers. The best approach for all dismissals, including those where animals have been abused, remains strict adherence to procedural requirements to try to avoid the likelihood of having a personal grievance raised in the first place.