Jim Pender calls a spade a spade!

[Chief Stipe]

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

ID: RIB7476

Respondent(s):
James Christie Pender - Trainer

Applicant:
Mr N Grimstone - Investigator - RIB

Adjudicators:
Hon J W Gendall QC

Persons Present:
Mr N Grimstone, Mr J C Pender, Mr B McKenzie - Lay Representative for Respondent

Information Number:
A17901

Decision Type:
Adjudicative Decision

Charge:
Misconduct

Rule(s):
340

Plea:
Admitted

Hearing Date:
16/02/2022

Hearing Location:
Tauranga Racecourse

Outcome: Proved

Penalty: Trainer James Pender is fined $500

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

Decision Date: 22/02/2022

Publish Date: 22/02/2022

[billy connolly]

5 hours ago, Chief Stipe said:

• “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”

I've tried to stop calling people a cunt but I cunt.

[Shad]

They just continue to push people away from the game, and as I've said before it  wont take much theses days,.

[nod]

Reminds me of J J Glen --for younger readers Jimmy was rumoured to have been an apprentice in Scotland  then for some years he was a merchant seaman before getting a riders licence in NZ

One Te Rapa day he rode the last three winners and coming in on the last he gave a Nazi salute. The outraged  stipes searched for some rule to charge him but could only come up with some minor rule and fined him the maximum -five pounds

Five pounds shouted Jimmy, fuck all out of the roll I get for that lot....Gotcha!, foul language , fined one hundred pounds

Jimmy suggested that if the  stipes were  at the starting gates they would collect thousands

[Chimbu]

I beg to differ that he "called a spade, a spade". As far as I am concerned he shot the messenger & the manner in which he did it was disgraceful.

Licenced trainers shouldn't behave like that - end of story. He was totally lacking in professionalism. Debate the issue, by all means, but do it with the right people. Don't denigrate/bully someone who is just doing their job. Tantrum throwing is an unattractive look.

[billy connolly]

43 minutes ago, Chimbu said:

I beg to differ that he "called a spade, a spade". As far as I am concerned he shot the messenger & the manner in which he did it was disgraceful.

Nonsense. no one except the complainant heard what was said.

Pender should never have plead guilty

.

 

[Reefton]

1 hour ago, Chimbu said:

I beg to differ that he "called a spade, a spade". As far as I am concerned he shot the messenger & the manner in which he did it was disgraceful.

Licenced trainers shouldn't behave like that - end of story. He was totally lacking in professionalism. Debate the issue, by all means, but do it with the right people. Don't denigrate/bully someone who is just doing their job. Tantrum throwing is an unattractive look.

Don't know about that.  If these people act in a very mediocre fashion(like the vast majority of the people who are working in public funded jobs) then they need to get chipped when they are out of line.  Otherwise we are just encouraging that aforementioned mediocrity and God knows the administration of NZ racing is chock full of mediocrity.

The bloke 'believed' Mr Pender's trackwork rider did not have the correct vaccination status.  Why did he not enquire instead of relying on his 'belief'?  If the guy had assured him he had the status he could have said 'when you are finished working the horse please bring me the proof'.  If the guy couldn't or didn't he could have reported him BUT I am sure(and I do not know him) Jim Pender would have been aware of the rules.  If he flouted them then it is up to a higher authority than a crossing keeper to take action.  Alternately Tauranga ought to have had someone on the float park gate checking the passes before riders were mounted on horses.  By the time they are at 'the gap' tehy are possibly already well in breach by being on the racecourse property.

We run into the same thing all the time dealing with government departments - utterly useless systems designed by utterly useless f-wits who have never done the job themselves but know exactly how the rules should be implemented.  And when you get stuck into them they come at you with this 'Abuse will not be tolerated' crap.  How are they going to improve if they will not accept correction?  And how do I charge my clients for time spent trying to decipher their idiot systems or fix their cock ups?  As often as not I have to wear it financially and it pisses me off!   You might say submit on the problems but those types are just like the powers that be in racing - the calls are generally made well before any submissions arrive and changes are extraordinarily unlikely.  Witness those halfwit politicians on that racing select committee last year or 2020 (1) 90% of them wouldn't know which end of the horse you poke the tucker into and (2)Winston and the Waikato Mafia would have had the Labour bloc and the National bloc (respectively) well schooled up not to listen to common sense but that the bill was to go through basically unchanged(which it ultimately did)

As an aside a couple of years ago I quipped to an IRD staff member that if I ended up blowing my brains out over the topic of the discussion it would be IRD's fault.  Two weeks later I get a schreeching letter(which I chucked in the bin) about not mentioning suicide  and upsetting their staff and God knows what.  Do you think they might have remotely considered the possibility that I was serious??  Not a bloody hope.    All they cared about was their own fat arses.

 

Edited February 23, 2022 by Reefton

[Reefton]

And besides which I have heard stories of a certain prominent Club CEO who apparently regularly explodes at trainers who don't kiss his butt.  And he obviously does it with impunity!  So where's the fairness?  The bloke doing major work in providing the product cannot fart without the full weight of the system coming down on him but the 'authorities' can be as big a plonkers as they like and nobody reacts.

[Reefton]

To be fair I spoke firmly to a trainer who abused one of my(female) committee at our recent meeting but I did it myself not rushed to the stipes to do my dirty work, the person he abused was merely doing a job on a voluntary basis AND she acted on instructions he himself had provided then changed his mind(ie someone else's horses ended up in a yard/paddock he initially indicated he didn't want then changed his mind).

On the topic of people speaking quite directly if I was an Auckland City Council senior staff member I would be spending the next few months filling my pants at the prospect of what might happen in November.  Mind you most of them are probably like John Allen and too thick to realise the danger they are in

 

[Chimbu]

It doesn't matter a toss whether one person or a hundred heard the abuse at the time as far as I am concerned.

Had the 'spray' concentrated on the issue not the man then I might have felt a little more kindly toward the licence holder.

This industry is rife with this sort of stuff (and worse) and it looks bad, particlarly to outsiders when they come across examples of it. If you were a parent who heard this and had a child keen to enter the industry would you be encouraging them to get involved, or would you be helping them to find something a whole lot better as a career?

In my current world, if I behaved this way, I would be lucky to be around to collect my next pay packet, and if I did escape job intact, I would have a warning on my file and would be watched closely by my superior & HR for up to a year. I suspect I would be subject to the dreaded re-training as well.

Thinking back, for all of my years (decades) as an employer, I never once abused my staff in the described manner. I certainly threw my toys a few times, but stuck to the issue at hand. I didn't abuse the person by putting them down due to their physical size or swore at them like this trainer did. 

Never, as an employee or an employer, would I ever say some of the things that were said in this barrage.

 

[Freda]

Have to have a 'bob each way '  here, I agree in principle with both Reefton and Chimbu.

Some very average 'officials' at time go well beyond their level of competence in enforcing utterly ridiculous instructions....and equally, professionals should not behave in the above described fashion.  I understand Jim's annoyance and frustration, if [ as Reefton stated ] the horse concerned had not been prevented from working the matter may not have escalated in this fashion.  The horse may have been racing or trialling in a matter of days, to work would have been critical.  Faults on both sides.

During my time in racing, in  which I have been all my adult working life, I have heard some appalling abuse from supposed professionals,  particularly to subordinates,with little done to rein them in.  Different if an official is lambasted, though.  The hapless stable hand or apprentice has to cop it, often in the birdcage and in front of an audience.

 

[Reefton]

2 hours ago, Freda said:

Have to have a 'bob each way '  here, I agree in principle with both Reefton and Chimbu.

Some very average 'officials' at time go well beyond their level of competence in enforcing utterly ridiculous instructions....and equally, professionals should not behave in the above described fashion.  I understand Jim's annoyance and frustration, if [ as Reefton stated ] the horse concerned had not been prevented from working the matter may not have escalated in this fashion.  The horse may have been racing or trialling in a matter of days, to work would have been critical.  Faults on both sides.

During my time in racing, in  which I have been all my adult working life, I have heard some appalling abuse from supposed professionals,  particularly to subordinates,with little done to rein them in.  Different if an official is lambasted, though.  The hapless stable hand or apprentice has to cop it, often in the birdcage and in front of an audience.

 

Bottom line is Pam the Tauranga Racing Club should have been manning the gate to the racecourse property/training stalls not the track crossing.  If Jim Pender's boy was on the property without the required vaccinations then there is an issue immediately.  The fault here lies with the crossing keepers employers for not keeping him safe

As far as what happens in stables I think it was a hell of a lot worse 50 years ago.  For all that my experience is that it is bloody easy to blame the rider when a nag gets beat.  If I had a dollar for every time I had heard the excuse 'poor ride' I would be making money out of racehorses instead of pouring it down the drain on them.

 

[billy connolly]

12 hours ago, Chimbu said:

In my current world, if I behaved this way, I would be lucky to be around to collect my next pay packet, and if I did escape job intact, I would have a warning on my file and would be watched closely by my superior & HR for up to a year. I suspect I would be subject to the dreaded re-training as well.

Never, as an employee or an employer, would I ever say some of the things that were said in this barrage.

Totally irrelevant and nothing to do with your world, your pay packet, your job, your file, your superior, your employer, blah, blah, blah.

This was a situation whereby an expensive racehorse that no doubt someone is paying good money to be trained/exercised yet a self important coont has prevented it from doing so.

Horses and trainers work to a set routine, the coont in question was lucky Pender never flattened him.

[Tim Carter]

Well at least Jim gave the overpaid and and underworked x cops a job!  As it was pointed out by a very astute Trainer at the Cambridge meeting with Sharrock and co, we must be a very dodgy lot to have a snitch line advertised on TV  . Did Jim hurt the poor guys  feelings. What a heinous and terrible thing to do! 

[Chief Stipe]

10 hours ago, Reefton said:

Bottom line is Pam the Tauranga Racing Club should have been manning the gate to the racecourse property/training stalls not the track crossing.  If Jim Pender's boy was on the property without the required vaccinations then there is an issue immediately.  The fault here lies with the crossing keepers employers for not keeping him safe

As far as what happens in stables I think it was a hell of a lot worse 50 years ago.  For all that my experience is that it is bloody easy to blame the rider when a nag gets beat.  If I had a dollar for every time I had heard the excuse 'poor ride' I would be making money out of racehorses instead of pouring it down the drain on them.

 

Are you serious?  Isn't NZTR’S interpretation of a workplace and what restrictions are required WAY WAY over the top?

What risk does a Jockey galloping a horse on its own have to anyone else in terms of Covid?

Might be a problem if he galloped the horse in the wrong direction.

[Reefton]

1 hour ago, Chief Stipe said:

Are you serious?  Isn't NZTR’S interpretation of a workplace and what restrictions are required WAY WAY over the top?

What risk does a Jockey galloping a horse on its own have to anyone else in terms of Covid?

Might be a problem if he galloped the horse in the wrong direction.

Whether it is good rule or not is pretty irrelevant.  The NZTR rule is you are not allowed on a racecourse without the double Vax so the Tauranga Club is required to be checking at the entrance to the course not when someone is aboard what might well have been a young green and uneducated horse.  The younger Pender, if he is not double vaxxed, should have been identified and escorted off the property before he ever got on a horse and clearly the Tauranga Racing Club was remiss in not having appropriate security to do so.  Accordingly they placed their crossing keeper in danger of being abused or assaulted when he had to take matters into his own hands.  

As a responsible employer you have a duty to keep employees out of harms way.  Whether the law is right or wrong it remains the law and we are well aware of at least one high profile racing personality who has run foul of it.  Personally I think that law is a crock of shiite but there are a lot of laws and rules that I think are crock of shiite but when wankers get a mad idea in their head what can you do?

[curious]

34 minutes ago, Reefton said:

Whether it is good rule or not is pretty irrelevant.

That's true. Quite agree.

36 minutes ago, Reefton said:

The NZTR rule is you are not allowed on a racecourse without the double Vax

That's not entirely true. If there are generally <15 people and no jockeys on course it is up to the club to decide that, subject to a Workplace Risk Assessment and relevant consultation.

[curious]

3 minutes ago, curious said:

That's true. Quite agree.

That's not entirely true. If there are generally <15 people and no jockeys on course it is up to the club to decide that, subject to a Workplace Risk Assessment and relevant consultation.

The Alert Level protocols will be enforced by the Government through its various agencies including the Police, WorkSafe New Zealand (WorkSafe) and the Ministry for Primary Industries (MPI). Contact tracing is essential and NZTR requires that you download the NZ COVID Tracer App to and use every time you are at a racecourse or training venue. Participants and attendees are also now required to download or print off their record of double vaccination “My Vaccine Pass” which must be used to ensure entry to a meeting.

As these are not classified as ‘events’ NZTR is not mandating a double vaccination requirement for activities other than race or trial meetings. Rather employers or training venues are entitled to undertake a risk assessment to determine whether or not they must mandate a double vaccination requirement upon their staff, contractors or visitors to their site.

[Reefton]

28 minutes ago, curious said:

That's true. Quite agree.

That's not entirely true. If there are generally <15 people and no jockeys on course it is up to the club to decide that, subject to a Workplace Risk Assessment and relevant consultation.

Ok accepted(we do not have a lot of training activities) but regardless it is not the time to challenge someone when they are  astride a horse and trying to get onto a track to work it.

Seems like a hell of a good way to upset someone badly to me.  And one also suspects this crossing keeper guy might be a little Hitler given the nature and content  of the attack on him by the licenced person(might be wrong there too)

But from what you are saying it is possible that the prominent unvaxxed trainers and rider in Canterbury could still attend training and ride work?   Presumably Tauranga is saying 'no problem to be on the course and unvexxed so long as you are not on one of the tracks aboard a horse while unvaxxed'  Perhaps they are worried the horse might catch covid???

 

 

[curious]

6 hours ago, Reefton said:

But from what you are saying it is possible that the prominent unvaxxed trainers and rider in Canterbury could still attend training and ride work?  

Yes, at a private training facility or a club facility that meets the above criteria and has decided to allow that.

[Chief Stipe]

11 hours ago, Reefton said:

Whether it is good rule or not is pretty irrelevant.

It is relevant.  If the rule is an incorrect interpretation of a Government directive then it is very relevant i.e. it is a bad rule.

11 hours ago, Reefton said:

The NZTR rule is you are not allowed on a racecourse without the double Vax so the Tauranga Club is required to be checking at the entrance to the course not when someone is aboard what might well have been a young green and uneducated horse.  The younger Pender, if he is not double vaxxed, should have been identified and escorted off the property before he ever got on a horse and clearly the Tauranga Racing Club was remiss in not having appropriate security to do so.  Accordingly they placed their crossing keeper in danger of being abused or assaulted when he had to take matters into his own hands.

So you put the onus back on someone trying to do their job under what is an illogical and irrelevant rule?  I guess you find it acceptable for ordinary New Zealanders acting as enforcers of just plain dumb rules handed down by an out of control Government and made doubly worse by Racing administrators who are equally no where near the coal face of enforcement.  Who handed out the brown shirts?

11 hours ago, Reefton said:

As a responsible employer you have a duty to keep employees out of harms way.  Whether the law is right or wrong it remains the law and we are well aware of at least one high profile racing personality who has run foul of it.  Personally I think that law is a crock of shiite but there are a lot of laws and rules that I think are crock of shiite but when wankers get a mad idea in their head what can you do?

Where at any stage was any other private licensed contractor or employee on that racecourse in "harms way" from an unvaccinated person?  

[Chief Stipe]

11 hours ago, curious said:

That's not entirely true. If there are generally <15 people and no jockeys on course it is up to the club to decide that, subject to a Workplace Risk Assessment and relevant consultation.

Where is that rule stated by Government?

[Chief Stipe]

10 hours ago, Reefton said:

But from what you are saying it is possible that the prominent unvaxxed trainers and rider in Canterbury could still attend training and ride work?   Presumably Tauranga is saying 'no problem to be on the course and unvexxed so long as you are not on one of the tracks aboard a horse while unvaxxed'  Perhaps they are worried the horse might catch covid???

It is more likely that the horse would catch Covid than any other Jockey or Trainer.  If you look at the vaccinated versus unvaccinated cases at the moment the rate of infection is greater in the vaccinated than the unvaccinated.  

Has NZTR adjusted their rules for the changes in the traffic light system?  If not then we are rapidly heading towards abandoned meetings.

Which is as bizarre as the unvaxxed airline pilots who were sacked where their place of work is a locked up cockpit yet who can travel as passengers amongst the great unwashed.

[curious]

31 minutes ago, Chief Stipe said:

Where is that rule stated by Government?

It is NZTR policy.

[curious]

26 minutes ago, Chief Stipe said:

Has NZTR adjusted their rules for the changes in the traffic light system?

Yes. I'm referring to their red light rules.