Oranga Tamariki does not receive much
positive media coverage. The latest report from the Independent Children's Monitor, Aroturuki Tamariki, says that Oranga Tamariki is still not meeting minimum standards for children in care. It reports that there has been no meaningful improvement since the last report, and the agency is still failing to meet the basic needs of tamariki in state care.
Oranga Tamariki has custody of more than 6000 children and is supposed to meet minimum standards of care that came into force in 2019.
That does not mean that Oranga Tamariki is not trying to improve its standards of care. In the recent decision of the Employment Court in Baillie v Oranga Tamariki the agency argued that a residential youth worker should not be re-instated to his position after he was dismissed.
Mr Baillie was employed in a secure residence for children and young persons run by Oranga Tamariki. In April 2021 there was an incident with a young person over his language and behaviour and Mr Baillie was kicked whilst remonstrating with him. The young person was then placed in a secure unit. The young person made a formal complaint about what happened. In responding to the complaint Oranga Tamariki decided to investigate six allegations about Mr Baillie’s conduct because it was dissatisfied with what happened before he was kicked.
At the conclusion of the investigation Oranga Tamariki was satisfied that Mr Baillie’s conduct was intimidating and aggressive and amounted to serious misconduct. Mr Baillie was summarily dismissed.
Mr Baillie raised a personal grievance for unjustified dismissal and successfully sought interim reinstatement in the Employment Relations Authority. However, the Authority then determined that his dismissal was justified.
Mr Baillie challenged the determination in the Employment Court and again sought reinstatement. Oranga Tamariki again defended its position that it had justifiably dismissed Mr Baillie. As an alternative, it argued that reinstatement was not a reasonable remedy.
Ultimately, the Employment Court concluded that Mr Baillie was unjustifiably dismissed.
Oranga Tamariki argued against reinstatement. It had concerns about the seriousness of the incident, an earlier letter of expectation given to Mr Baillie over a previous matter, and Mr Baillie’s lack of insight or acceptance of wrongdoing. It raised the relatively small size of the secure facility and concerns as to the message Mr Baillie’s reinstatement might convey to children, young persons and staff by downplaying and sanctioning the inappropriate use of force and abuse of power.
In coming to its decision to reinstate Mr Baillie to his former position the Employment Court considered that because it was practicable and reasonable to do so, it must do so because reinstatement is the primary remedy under the Employment Relations Act, and it applies irrespective of what other remedies may be awarded.
The remedy of reinstatement has had a chequered legislative history. Under the Labour Relations Act it was the primary remedy, under the Employment Contracts Act it was just one of the remedies, the original Employment Relations Act made it the primary remedy but that was later amended to make it a discretionary remedy. Most recently it has again been amended to make it the primary remedy.
As a former Chief Judge has noted “reinstatement to a former position in these days is far more valuable and far more important than it was in days not long ago when other employment could be readily obtained”. Another Judge has noted that to routinely award compensation instead of reinstatement is to create a system of licencing unjustifiable dismissal.
While reinstatement is not a commonly awarded remedy, either because it is not asked for by the dismissed employee or that there are solid practical reasons why it should not be awarded, it remains a substantial threat to employers when dismissing an employee. It helps ensure that the employer has good grounds to dismiss an employee and that the employer follows a fair process. Whatever the merits of the case, the serious threat of it remains a source of negotiating strength for an employee.
Mr Baillie has been vindicated by the Employment Court. But maybe it is important to know that Oranga Tamariki took a position, ultimately one that was legally wrong, to try and protect the tamariki in its care. Read more...