Stephen Baillie, a residential Oranga Tamariki youth worker, was fired following allegations he inappropriately handled an incident involving a boy. Photo / File
Stephen Baillie, a residential Oranga Tamariki youth worker, was fired following allegations he inappropriately handled an incident involving a boy. Photo / File
An Oranga Tamariki residential youth worker who was fired for being “intimidating and aggressive” towards a young person will now return to his role with his “head held high” and more than $100,000 in his back pocket.
Stephen Baillie was sacked from his job at youth justice residence Te PunaWai ō Tuhinapo in Christchurch in September last year following an incident with a boy at the centre.
The youth laid a formal complaint about Baillie’s conduct which Oranga Tamariki investigated. The agency upheld the allegations and fired him without notice for serious misconduct.
But following 15 months of litigation, an Employment Court decision released on Friday has found Baillie was unjustifiably dismissed and ordered he be reinstated to the job.
The court also ordered Oranga Tamariki to pay Baillie $30,000 compensation and to pay him lost remuneration from the date of his dismissal until the date of the judgment.
Andrew McKenzie, Baillie’s lawyer, told NZME the financial remedies were in excess of $100,000 - “a recent record in public sector judgments”, he said.
McKenzie confirmed his client’s relief at the outcome and his “even stronger motivation to return to the job that he loved and did well”.
“The thorough and careful judgment allows him to return with his head held high,” he said.
The decision detailed how the April 2021 incident began when the boy was on a phone call to his girlfriend.
Baillie overheard the boy talking and believed the language he was using was abusive and aggressive toward the girl. He spoke with the youth, telling him it was unacceptable and needed to stop.
When Baillie and his colleague left the room, the boy threw the phone speaker. Baillie returned and explained that if the boy continued using abusive language, making threats against staff and throwing property, his phone call would end and he would lose “behaviour management system points”.
“The young person’s response was that he did not care about losing the points but if the call ended he would ‘smash’ Mr Baillie,” the decision detailed.
Baillie tried to grab the speaker and at that point, the boy kicked him. When Baillie stepped back after being kicked he briefly closed his right hand and pulled his right arm back slightly. This was captured on CCTV.
Baillie was fired from his role following an incident with a boy in a youth residence. Photo / RNZ
Though the boy’s complaint did not mention Baillie forming a fist or any concern about being punched, that action was treated “extremely seriously” by Oranga Tamariki.
The agency eventually decided Baillie had formed a fist and was preparing to punch the young person.
But no punch or hit followed and Baillie and his colleague instead restrained the boy, who was then taken to a secure unit.
In responding to the complaint, Oranga Tamariki investigated six allegations regarding Baillie’s conduct. They included displaying “aggressive and intimidating behaviour” toward the boy, standing too close to him, inappropriately restraining him, taunting him, and preparing to punch him.
While the boy had admitted to kicking Baillie and throwing the speaker, the crux of his complaint was how he claimed Baillie had spoken to him.
He alleged Baillie had encouraged the boy to hit him by saying “come on then, do it” and then called the youth a “typical drug addict”.
Baillie denied all of the allegations and further explained he had not intentionally formed a fist but rather it was a reflex action. His union timed the image of his closed hand at less than one second.
Ultimately, Oranga Tamariki was satisfied that his conduct was “intimidating and aggressive” and four of the allegations were substantiated.
One was partly substantiated and the last one was dismissed. Oranga Tamariki concluded the substantiated
allegations were serious misconduct and Baillie was fired without notice.
Baillie then appealed against the determination in the Employment Court, seeking to be reinstated to his former position, or to one no less advantageous, lost remuneration and compensation.
Oranga Tamariki denied it had unjustifiably dismissed Baillie and argued that if he succeeded in his challenge, reinstatement as a remedy was not reasonable.
Following the Employment Court hearing in September, Judge Kerry Smith released his decision last week, finding in favour of Baillie.
“I do not accept that the decision to summarily dismiss Mr Baillie was one that, viewed objectively, was what a fair and reasonable employer could have done in all the circumstances at the time the dismissal occurred,” he said.
Oranga Tamariki had placed “heavy, almost exclusive,” reliance on its CCTV footage, none of which had an accompanying audio recording, Judge Smith said.
He said inferences had been drawn from the footage without adequately taking into account “their potentially limited value without audio”, the possibility the images might support different conclusions, and uncontested evidence “that contradicted the impressions from the footage that generated the allegations”.
Included in the submissions that helped form the judge’s ruling, was that Baillie’s colleague who was assisting him at the time of the incident said he had no concerns about Baillie’s conduct - “at all”.
Also, Oranga Tamariki had not interviewed the young person at any stage of the investigation, meaning that in reaching the conclusion that Baillie acted “aggressively and inappropriately”, Oranga Tamariki “preferred” its “interpretation” of the CCTV footage over what was said by Baillie and his colleague.
In considering whether Baillie should return to his previous position, Judge Smith noted Oranga Tamariki’s resistance to his reinstatement relied on its conclusions that Baillie fell below the standard required of him.
“I do not agree that he did,” the judge found. “I am satisfied that reinstatement is practicable and reasonable.”
The decision was welcomed by Janice Gemmell of the National Union of Public Employees (NUPE), the union that supported Baillie with his claim.
“Fifteen months later, after extensive litigation, the wrong has been undone, sadly at significant personal cost to Steve and his family and the likely cost of nearly half a million dollars to the taxpayer once all bills are paid,” Gemmell said.
