Non Raceday Inquiry – Written Decision dated 22 February 2022 – James Pender

REASONS FOR DECISION

1.  The Information presented to the Adjudicative Committee alleged that Mr J C Pender committed a breach of Rule 340 of the Rules of Thoroughbred Racing in that he misconducted himself at Tauranga on 21 December 2021 by using insulting and offensive language directed at an employee of the Tauranga Racing Club.

2.  Mr Pender admitted the charge.

3.  Rule 340 provides:

“A licensed person, owner, leasee, Racing Manager, Official or other person bound by these Rules must not conduct himself in any matter relating to the conduct of Races or Racing.”

4. The penalty provision for a breach of Rule 340 is the general provision in Rule 803(1) – namely disqualification and/or suspension for up to 12 months and/or a fine not exceeding $20,000. But the Adjudicative Committee immediately adds that such levels are for the most serious of offences.

5.  The hearing was conducted at Tauranga Racecourse before racing on 16 February 2021.  The Adjudicative Committee had received and considered written submissions on behalf of the Informant and Respondent as to penalty.  It received further oral submissions at the hearing.

BACKGROUND FACTS

6.  Mr Pender has held a Class A Trainers Licence for more than 30 years and trains horses at Tauranga Racecourse.  Because of COVID-19 restrictions, the NZTR had issued a Directive to Racing Clubs of Rules that were required to be followed in their work places.  These included a Directive that no employee or others were permitted to enter a racecourse if they were unvaccinated.  The Tauranga Racing Club issued this notice to Trainers, directing that persons using the Club’s facilities were to strictly adhere to the Rules.

7.  An employee of the Club had the duty, along with others, of the task of monitoring horses using the “Gap” at the track in their training.  On the morning of 21 December 2021, at about 6am, a horse of which Mr Pender was the Trainer, and being ridden by his Trackwork Rider (his son) endeavoured to enter the track at the “Gap”.  The Club employee believed that the Trackwork Rider had not obtained the necessary vaccination status required, and provided to the Club the necessary certificate.  He told the Rider that he was not permitted to take the horse onto the track.  The Rider believed that he had met such requirement, but left the track.  He complained about the employee by a phone call to Mr Pender.  Whether the belief of the employee was mistaken, or whether the Track Rider’s assertion was correct is not something that can or needs to be resolved in this inquiry.

8.  Mr Pender was at the track and some distance from the “Gap”.  He immediately drove his vehicle to an area near the “Gap” and angrily confronted the employee. He was told that, in the employee’s view, the Track Rider did not meet the requirements to enter the track.  Mr Pender was angry and agitated.  He then yelled at the employee using abusive and obscene language, in derogatory and insulting terms which included insults over the employee’s body size.

9.  The Summary of Facts records the words used by Mr Pender in describing the employee in the following abusive manner:

• “You are a f…..g useless manager – worst in the country”
• “You are a f…..g large c..t”
• “Look how fat you are”
• “You useless c..t”

10.  Upon being subject to such abuse, the employee (the summary records) was shocked and responded to the effect that Mr Pender was “being cruel” which resulted in Mr Pender telling the employee “you can go and get f….d”.

11.  A complaint was made to an RIB Investigator and Mr Pender was interviewed on 23 December 2021.  The summary states that he originally downplayed the event, but later admitted that he had “lost [his] cool” and “over reacted”.  He said he had been angry, because his horse had not been allowed onto the course to work.  He admitted using the abusive language [although he told the Adjudicative Committee that he does not remember the exact words used – but accepts the allegation].  He was told by the Investigator that the employee “was only doing his job” which Mr Pender appeared to accept and apologised for his behaviour.

12.  Mr Pender is aged 69 years and has spent a lifetime in the Racing Industry without any previous breach of the Rules.

SUBMISSIONS PRESENTED BY LAY ADVOCATE FOR MR PENDER

13.  There had been forwarded to the Adjudicative Committee before today, lengthy submissions and statements.  These comprised:

(a)  An affidavit of the Track Rider containing 23 paragraphs setting out his version of the various background facts and relating to his dealings with the employee. They do not focus on the real issue, namely the admitted abusive behaviour, as Mr Pender Junior was not present, so could not express a view as to what then occurred.  He expresses his opinion that it was the action of the employee towards him, that caused Mr Pender to become upset.

(b)  Written Submissions of Mr McKenzie which encompass 40 paragraphs.  These contain many paragraphs and detailed versions as to why he says the abusive, offensive language occurred.

14. It is not the function of the Adjudicative Committee to determine any dispute between the Track Rider and Club Employee.  It is not able to engage in discussion of, or make any conclusions or findings on matters advanced to contend that the employee “contributed” to Mr Pender’s admitted breach of the Misconduct Rule.  What the rights or wrongs of the beliefs of the employee and the Track Rider, vis-a-vis the disagreement between them, they are not directly pertinent to the behaviour of Mr Pender.  The same comment applies to past concerns harboured by Mr Pender towards some Club related aspects.  These matters may provide some background to the antagonism that existed, and why Mr Pender lost his temper, but they do not excuse his misconduct.  Nor do they provide support for the submission that the employee “contributed” to the behaviours.

15.  Rule 340 is concerned with dealing with misconduct which is designed to protect and uphold the standards of behaviour to be expected and required of licence holders (and others bound by the Rules).  The Adjudicative Committee’s function is not about adjudicating or ruling upon, respective arguments as to rights and wrongs of licence holders or others.  If differences should exist, they may be resolved in other ways.  But if standards of behaviour are breached, the entire profession comes into disrepute, its public standing is in jeopardy, and its standing as a respected and honourable profession is diminished.  It is not an answer to misconduct in breach of the Rule to say that some other person was partially to blame, for the misconduct of the offender.  The need to deter other licencees, from employing similar misconduct is very important.

16.  “Abuse” which amounts to misconduct can involve many different forms.  It may usually involve vulgar offensive, belittling and derogatory words, being extremely insulting and offensive.  It often involves hurtful and humiliating words which can cause the recipient to feel upset and wounded.  That could be said to be the case here.

17.  A marginally analogous case is that of RIU v HA Wynard (27 July 2020) which involved a misconduct breach of Rule 340.  There a Licenced Trainer directed serious repeated abuse, in obscene terms, to two teenage Track Riders which arose because she was angered over how she believed they were using the training area of the track.  She admitted the charge and argued that she had “anger issues”.  Her displeasure with the young Riders was not regarded as an excuse.  She had no previous breaches of the Rules but was fined $1,000 and ordered to pay costs of $300.

18.  There was obviously some background tensions existing in Mr Pender’s mind relating to his comments about Club matters, and of the employee, which led to his losing his temper with the angry, offensive and insulting outbursts.  But, as Mr Pender accepts, that was no excuse.

19.  Human frailty is such that it may lead to a person momentarily losing self control, loss of temper, and result in emotional angry outbursts.  That person will otherwise be a decent human who “loses his mind” for an instant.  Mr Pender’s behaviour on that morning falls into that category.  He is remorseful and has apologised for his insults.  Although no one else was present to see or hear the exchange, the Club employee was hurt by the personalised outbursts.

20.  Mitigating factors include Mr Pender’s blameless record over many years, his reputation for honest and respected behaviour, the impressive references as to his character from prominent members in the Racing profession (which references were provided to the Adjudicative Committee).  He is entitled to significant credit for these factors.  Although Ms Wyngard was fined $1,000, and the Informant here suggested a fine for $1,500 was appropriate in this case, the Adjudicative Committee prefers to take as a “starting point” a fine of  $1,000, and allow Mr Pender a very generous discount of 50% to reflect the strong mitigating features.  But it has to be impressed upon licencees in the profession that stern consequences may follow for such misconduct.

21.  Accordingly, Mr Pender is fined $500.  As the matter has been dealt with on a raceday there is no order for costs.

Hon J W Gendall QC – Chair