An employee may have concerns about their workplace but a constructive dismissal claim may be hard to successfully prove.
In a recent Employment Relations Authority decision a former zookeeper at Hamilton Zoo was unsuccessful in her claim that she was constructively dismissed even though she was awarded $18,000 compensation for an unjustified disadvantage claim regarding the behaviour of one manager that the Authority considered to be “very close to amounting to sexual harassment”.
Ashleigh Sanders worked at Hamilton Zoo from 2017 until December 2020. During her employment she developed a growing list of concerns about the Zoo. There were complaints about staff shortages, heavy workloads, rosters being released late, difficulties taking leave, a lack of training and development opportunities, animal welfare and the way the Zoo was managed.
The appointment of a senior manager, anonymised in the Authority’s decision as “T”, caused Ms Sanders concern as she considered that T had created a culture of fear. She said he privately approached staff, asked questions about colleagues and used information he obtained against people. A colleague described him as “grooming” people he believed he could control and trying to get rid of those he could not.
T’s conduct towards Ms Sanders became increasingly personal. He contacted her by txt outside working hours, initially about work, but later about her personal life. After Ms Sanders separated from her boyfriend, who also worked at the Zoo, T discussed the former boyfriend’s work performance with her. He asked her out for coffee on one or two occasions, which she declined. When she tried to put some distance between them, she said he continued approaching her and calling her into his office.
Ms Sanders told a friend that T had said her relationship with her former boyfriend had damaged her prospects for training and development. On another occasion, she said he told her that she would not get anywhere because managers did not like her, while also telling her that he personally liked her and would support her.
The Authority accepted much of Ms Sanders’ evidence about T. There was no apparent legitimate work reason for the level of contact he initiated, particularly outside working hours. The Authority also accepted that he had persisted in seeking personal information from Ms Sanders after she had indicated that she did not want to discuss it.
The problems at the Zoo were not confined to Ms Sanders. Concerns about fatigue, morale, staffing and bullying had been raised more generally. A staff engagement survey found that the Zoo’s engagement score was below set benchmarks, with favouritism, fatigue and low morale among the concerns identified.
The Zoo subsequently took a number of steps, including changing rosters, increasing staffing, reviewing health and safety procedures, providing counselling and employee assistance support, and introducing measures intended to reduce workload and provide emotional support for zookeepers.
Ms Sanders continued to struggle. In October 2019 she suffered a panic attack at work and received immediate assistance from HR and a counsellor. She subsequently had a number of health appointments and counselling sessions. She described her mental health as deteriorating, with increasing anxiety and depression.
But T had left the Zoo in October 2019. Dr Baird had became Zoo director. The Authority found that he regularly discussed matters with Ms Sanders, respected her work and was open to hearing her concerns.
Nevertheless, on 1 December 2020 Ms Sanders resigned, saying that her mental health was “severely compromised” by working at the Zoo and that she could no longer continue. She subsequently claimed that she had been constructively dismissed.
There are generally three categories of constructive dismissal. The first is where the employer effectively gives the employee a choice between resigning and being dismissed. The second is where the employer embarks upon a course of conduct intended to bring about the employee’s resignation. The third, the one relied upon by Ms Sanders, is where the employer breaches its obligations to the employee so seriously that the employee is justified in resigning.
The Authority accepted that T had behaved badly, but he had left more than a year before Ms Sanders resigned. There was also evidence of substantial support being provided to Ms Sanders after T’s departure. The new management had attempted to engage with her concerns, while she had access to HR support and counselling.
The Authority also found that there was insufficient medical evidence to establish that the earlier events had caused Ms Sanders to reach the point where she could no longer work at the Zoo.
There was a further problem. Ms Sanders did not made a sudden departure. She had sought references from people at the Zoo at least a couple of weeks before resigning. That suggested a considered decision to leave rather than a resignation forced upon her by an employer’s conduct.
The Authority concluded that even if there had been breaches of duty which contributed to the resignation, they were not sufficiently serious to make the risk of resignation reasonably foreseeable. Ms Sanders claim that she had been constructive dismissed failed.
There is a perception that if an employee may have been treated badly treated and resigns because they are unhappy, the law will regard that resignation as a dismissal. It does not. Constructive dismissal can be difficult to establish. Read more....
As election campaigns go, paid parental leave is not usually the issue that swings votes. But like infrastructure, it is an investment into the future. Something that New Zealand notoriously underinvests in. Paid parental leave supports the value we place on the first months of a child’s life, and the support society provides to the parents doing the caring.
The National Party’s recent announcement that it would gradually extend paid parental leave from 26 weeks to 30 weeks if re-elected deserves attention, given that the government it leads has reduced employment entitlements during its term in government. Arguably the most detrimental has been the controversial changes to how pay equity claims can be made. Dozens of existing claims have been blocked from female-dominated workforces which are generally considered to be underpaid in comparison to those dominated by men, saving the government “billions of dollars” as the Prime Minister admitted.
National’s policy would see paid parental leave extending to 30 weeks by 2029. The party has also revived its policy to allow parents greater flexibility in how they share leave entitlements, enabling mothers and fathers to take leave together or in overlapping periods rather than constraining families into more rigid arrangements. The Prime Minister describes the policy as giving families more choice and more time with their babies.
The Labour Party has pointed to National’s historical opposition to some parental leave extensions, while National has responded by highlighting Labour’s rejection of previous proposals to make leave-sharing arrangements more flexible. The reality is that New Zealand’s parental leave scheme remains modest by international standards.
Recent OECD comparisons show that mothers across OECD countries receive, on average, just under 19 weeks of paid maternity leave around childbirth. In the OECD many countries replace a substantial proportion of a parent's earnings during maternity leave, with a number of OECD countries effectively providing full-rate compensation for mothers on average earnings.
New Zealand currently provides up to 26 weeks of paid parental leave, which may appear generous. The difficulty is that payments are capped. From 1 July this year the maximum weekly parental leave payment increased to $811.05 before tax. For many middle-income and higher-income households, that represents a substantial reduction in income at precisely the time family expenses are increasing. Arguably, those households have less need for the State’s assistance, but a significant proportion of those households rely on both parents incomes to meet the high cost of living.
That gap has increasingly been filled by some employers. Contact Energy attracted attention when it introduced a parental leave package that tops up government payments to full salary for the entire 26-week leave period, continues employer KiwiSaver contributions during leave, offers flexible return-to-work arrangements, and provides a childcare contribution. It shows what progressive employers can do to support working families and improve gender equity in the workplace.
Employer generosity should not be the solution though. Statistics cited by the New Zealand Institute of Economic Research indicate that only a small proportion of employers provide salary top-ups or continue KiwiSaver contributions during parental leave. The result is that the financial impact of having children falls unevenly across the workforce. Employees of large corporates may receive more generous support but employees of small businesses often do not. Women are more likely to be significantly impacted in relation to their KiwiSaver plans, and their return to work. The Retirement Commission has highlighted that women retire with significantly less savings than men, reflecting factors such as pay disparities, part-time work, and periods spent caring for children.
While few people decide whether to have children based solely on parental leave entitlements, government support sends an important signal about whether families are valued (and the tamariki are New Zealand’s future workforce). Young families face many increased expenses, doctors appointments, prescriptions, increased housing costs, heating, expensive childcare etc, while often operating on reduced incomes.
Extending paid parental leave is expensive and the country faces fiscal challenges such as growing unemployment, increased inflation and a cost of living crisis. Those concerns are legitimate. But New Zealand is also a nation of small businesses, many of which operate on narrow margins and they cannot realistically afford extensive employer-funded parental leave schemes.
National’s policy will not place New Zealand at the top of the OECD rankings. It does not eliminate the costs many parents still experience when taking leave. It does not solve the long-term impact on women in particular. But it would move New Zealand in the right direction. Read more....
Last week public servants walked off the job at the Department of Internal Affairs for two hours in protest over pay and proposed changes to working conditions. The union, the Public Service Association, said that the largest group affected were Life and Identity Services Officers, most of whom earn about $65,000 a year.
In bargaining for a new collective agreement it is understood that DIA had offered a $700 pay increase to each midpoint of each pay band. The PSA says this equated to an average pay rise of about 0.8% (well below the current inflation rate which effectively means a pay cut given the current cost of living and inflation). The PSA acknowledged that the DIA had offered a one-off lump sum of $1,500 but said this did not increase the workers base salaries. The PSA said it was seeking a $2,000 increase to the mid-point of each pay band which equated to a pay increase of about 2.3%.
Strikes used to be associated with workers walking off the job for days at a time. However, that meant that workers were not entitled to pay for those days. Increasingly the most effective industrial action is not a complete withdrawal of labour, it is employees continuing to do their jobs while refusing to perform parts of them - partial strikes.
Last year, the government amended the law allowing employers to deduct pay from employees engaged in partial strikes without having to suspend or lock them out. Employers may now deduct either 10 per cent of an employee's pay or make a proportionate deduction. The changes were promoted as restoring balance to collective bargaining by ensuring that employees who deliberately withhold part of their labour can no longer expect to receive full pay while doing so.
The first significant case to test the change has now reached the Employment Court. It arose during collective bargaining between NZEI Te Riu Roa and the Secretary for Education. Union members employed as psychologists, speech language therapists, physiotherapists, learning support advisers and kaitakawaenga undertook partial strike action by refusing to work unpaid overtime, refusing to work more than 38 hours per week and refusing to accept new cases, while otherwise continuing to perform their ordinary duties. The Ministry of Education responded by deducting 10 per cent of their pay.
The main legal issue being tested in the Court was deceptively simple: who must be notified before those deductions can lawfully be made? The majority of the Employment Court concluded that the Ministry had complied with its statutory obligations by giving notice through the union. However, Judge Helen Doyle strongly disagreed. In a strong and carefully reasoned dissenting judgment, she concluded that the legislation requires notice to be given individually to each affected employee before deductions are made. In her view, Parliament had deliberately chosen language that contemplated personal notice and employees should not have their wages reduced without being directly informed.
It is difficult to argue that an employee should necessarily receive 100 per cent of their wages while deliberately refusing to perform aspects of their role as part of industrial action. Equally, it would be disproportionate for an employer to deduct all of an employee's pay where the employee continues to perform most of their duties. The difficulty lies in deciding where the balance should be struck.
The government's solution of allowing employers to deduct a flat 10 per cent of wages may appear administratively attractive. However, it inevitably produces arbitrary outcomes. In some cases, employees may be withholding work worth considerably more than 10 per cent of their duties. In others, the deduction may exceed the actual value of the work being withheld. The legislation permits proportionate deductions, but calculating those deductions is often likely to involve difficult assessments of an employee's duties and the value of particular work tasks.
As with many of the government’s recent changes to employment law, what sounds straightforward in theory has proved rather more complicated in practice. What the Secretary of Education found is that what should have been a straightforward deduction of 10% of pay has become a major litigation battle. The union, NZEI Te Riu, has said it is appealing the Employment Court’s split decision to the Court of Appeal.
It is early days since the partial strike was taken last week at the DIA. It is unclear if the Department has given notice that it intends to withhold pay for the workers taking part in that partial strike. If it does so, it might come with a hefty lawyers bill. Read more...
