Controversy over Cabinet Minister Kiri Allan’s conduct with staff in her office continues.
Staff in her office will usually be employed by Ministerial Services to provide operational support and advice to the Minister. Other staff are typically seconded into the Minister’s office from the Ministries or Departments that the Minister has accountability for. This raises the interesting question of whether there may be a triangular employment relationship, or whether there is a “controlling third party” that has some responsibility if things go wrong.
Last week the Department of Conservation Director-General confirmed in a statement that a staff member had ended their secondment to Minister Allan’s office early because working relationships were "not running as smoothly" as they might. She said it was bad enough that she had discussed it with Internal Affairs, which manages Ministerial Services, but no further concerns were brought to her attention and she believed relationships had improved.
The Chief Executive of the National Emergency Management Agency said he was also aware of concerns regarding relationships in the Minister’s office with staff seconded from his agency.
It is now reported that further senior public service staff have spoken out about workplace relationships relating to the Minister. The Minister has strongly denied the allegations and has said that no formal allegations have been brought to her attention.
When asked if she was a tough boss, the Minister said she didn’t think so. “I can be a bit of fun. I can be pretty passionate. And I think that I’m definitely not a Wellington politician. I’m from the regions. We do things a little bit differently. But I think I’m fair. I think I have clear expectations, and when those aren’t met, I’m clear about those as well.”
Traditionally, employment relationships involve two parties - the employer and the employee. More recently, changing patterns of work of work have seen the development of potential triangular employment relationships. The most obvious example is where a labour-hire agency agrees to supply a worker to another employer (the host). The host will pay a fee to the agency to cover the cost of the labour, plus a profit for the agency. In turn the agency pays the worker who agrees to work for the host under the host’s control.
To decide whether the worker was an employee of the agency or the host, the courts have applied a number of traditional tests, such as the intentions of the parties, to what extent the worker was integrated or controlled in the host’s business and who was responsible for disciplinary issues.
Since June 2020 the Employment Relations Authority has also been given the power to join a “controlling third party” to a personal grievance claim that relates to an action that is alleged to have occurred while the employee was working under the control or direction of the controlling third party. If the grievance is made out, the Authority is required to consider to what extent the controlling third party caused or contributed to the grievance and appropriately apportion remedies between the “employer” and the controlling third party.
Public Service Minister Andrew Little has noted Minister Allan has not been the subject of any formal complaints. "There hasn't been the opportunity to investigate what has happened and, although there are new allegations coming out now, it's hard to know where the truth lies”. "Senior public servants - they know what the process is if they've got staff who they don't think are being properly treated in a Minister's office." Little added the situation was unusual, given the usual process was for such allegations to be reported to the Public Service Commission and the Prime Minister's office "it appears, from what everybody is saying - including the Prime Minister - that that simply hasn't happened. That's surprising in this situation".
Should it ever get to the stage that a personal grievance is claimed by a worker in the Minister’s office, it does raise the interesting issue of where responsibility may lie. There is no absolute right for a Minister to be indemnified by the Crown for their actions, other than legal proceedings taken against them in the course of their official ministerial duties.
As the situation stands, it is hard not to feel sympathy for Minister Allan. Natural justice would require that she is provided with the details of any complaints. So far, she is being exposed to unspecific claims in the media with little substance being provided. Read more....