New Zealand awaits the election outcome following the counting of special votes and the impact this may have on the formation of our new coalition government.

For years, tikanga Māori has increasingly been recognised by our courts and legislation. The most recent significant case was the Supreme Court decision on whether Peter Ellis, under tikanga (the customary rules which govern Māori life), would have a right to clear his name or re-establish his mana, even if dead. In Māoridom, mana and reputation carries on in whakapapa, rather than an individual's life.

The Act Party, as part of its election policy platform, has said that it would hold a binding referendum on the introduction of a Treaty Principles Act. It says that this Act would affirm that the New Zealand Government has the right to govern New Zealand, and that all New Zealanders are equal under the law, with the same rights and duties. The Act Party says the referendum is a “bottom-line” for it.

The Employment Court has recently affirmed that tikanga is important when an employer is considering dismissing an employee.

Carey Robinson was employed by Pact Group as a community support worker for 15 years. Her role involved supporting clients to live as independently as possible within the community. The job was varied, as were the needs of each of the clients Ms Robinson worked with. Ms Robinson was well regarded and received positive performance reviews over the years. No issues had been raised in any aspect of her work.

In 2021 Pact Group embarked on a restructuring exercise which impacted on Ms Robinson. Ms Robinson was required to complete additional training in respect of the administration of medication. This required her to be in the office early and she had difficulty with this as she provided daily care for her elderly mother before she started work. She also reported experiencing a high workload as she had been trying to catch up with all of her clients since the most recent lockdown and had been attempting to complete the medication requirements outside her rostered hours. Ms Robinson reported that “this has been a huge juggle for myself and my clients.”

Unbeknown to Ms Robinson, this was reported up the line to Mr Cardy, the company’s General Manager based in Dunedin. Ms Robinson’s comment that “this has been a huge juggle” prompted him to look into Ms Robinson’s work, including the records from Ms Robinson’s work phone and the GPS records on her work vehicle.

Mr Cardy wrote to Ms Robinson explaining that he had undertaken a review of her current workload and that as a result he had concerns as to how she was spending her work hours. Mr Cardy advised Ms Robinson that if his suspicions were correct, it would lead to the conclusion that she was falsifying time records and making fraudulent claims for payment. He advised Ms Robinson that dismissal was a possible outcome. He required Ms Robinson to attend a meeting to be conducted virtually via Zoom.

Unsurprisingly Ms Robinson was shocked to receive Mr Cardy’s correspondence. She asked to meet with Mr Cardy in person to discuss matters. The request for an in-person meeting was refused.

At the Zoom meeting Ms Robinson reiterated that she had wanted to meet in person, and said that the way in which Mr Cardy had dealt with matters had left her feeling “stripped of her mana, culturally disadvantaged, and that this mishandling of her mana had resulted in feelings of shame.” She also touched on her personal circumstances, including that she was the carer of her mother and that she was herself suffering from a health condition.

Ms Robinson said that unfair made assumptions were being made that she was not working when she was not with a client or driving during the work day. She pointed out that there were numerous other tasks that she was required to attend to, including engaging with stakeholders and attending to arrangements to provide support to her clients in order to meet their complex needs.

The company dismissed Ms Robinson for serious misconduct, with immediate effect.

In reaching its decision that Ms Robinson was unjustifiably dismissed, the Employment Court also concluded that Ms Robinson’s personal circumstances and her cultural needs were relevant.

Ms Robinson alerted the company during the Zoom meeting that she had caregiver responsibilities to her mother (who suffered from dementia and required daily care). Ms Robinson also referred to being impacted by health issues of a personal nature which she felt embarrassed about discussing in the context of a disciplinary meeting conducted via Zoom.

Mr Cardy did not request further information as to the personal challenges Ms Robinson was evidently confronting, either during or following the meeting. Judge Inglis said that it was his obligation as a fair and reasonable employer to take steps to ensure he had the relevant information before reaching any concluded view.

Also relevant was the fact that Ms Robinson is Māori and had raised during the first Zoom meeting that her mana was being impacted by the process. The Judge said that there was nothing to suggest that these concerns were seriously considered or factored into the way in which the company proceeded. The Judge said that the process was hurried and conducted in a distanced, impersonal way that undermined, rather than maintained, Ms Robinson’s mana.

The Judge also referred to Utu, “the action undertaken in reciprocity”, and its link to mana. To show and reciprocate generosity enhances mana and strengthens relationships, whereas the failure to give or receive utu diminishes the mana of both parties to the relationship. Ms Robinson gave evidence that she felt as though her treatment by the company failed to reciprocate the care, empathy and consideration she was expected to bring to her own role within the company.

While there may have been legitimate reasons to discuss the perceived concerns with Ms Robinson, Ms Robinson was a long serving employee and was well regarded. It must have been shocking for her to receive the request to the disciplinary meeting from Mr Cardy and for the company to proceed as it did. Reciprocity is a good starting point; after fifteen years loyal service the company should have engaged in a process that maintained Ms Robinson’s mana.

It seems unlikely that such a concept under tikanga will have any traction under the Act Party’s platform to establish a Treaty Principles Act. It will be interesting to see to what extent this is explored in the National/Act coalition agreement coming up and whether a referendum will be agreed to.  Read more....

The election campaign is in its final week. The campaign has heated up, and so has the rhetoric. A recent decision of the Employment Court makes it clear that employees should be cautious about using their social media platforms to express their personal views when the posts could negatively impact their employer.

Amanda Turner was employed by the Wairarapa District Health Board (DHB) as a registered palliative care nurse until she was dismissed in April 2021. Ms Turner claimed that in dismissing her the DHB acted in a discriminatory manner and ignored her right to freedom of expression.

Ms Turner had 86 “Facebook friends”. They were accessible to other employees of the DHB and employees of the aged residential care facility where she worked. The DHB became aware that Ms Turner was posting antivaccine information on Facebook. Those posts were causing staff that looked up to Ms Turner to question whether they should be vaccinated against Covid-19.

There were also a substantial number of posts that expressed concern about Muslim immigration; they were derogatory towards Muslims generally, as well as particular Muslim individuals. Other posts not raised by the DHB included posts that were derogatory of a nonbinary person and those attacking the Government and the then Prime Minister.

As part of her employment agreement Ms Turner was required to comply with the DHB’s policies, including the Code of Conduct and the DHB’s social media policy. That policy referred to the risks to the DHB of social media being mismanaged by individuals, including damaging the DHB’s reputation.

In her defence, Ms Turner said that her comments about Muslim immigration were a political belief and that when she was dismissed she was being discriminated against because she is a Christian. Judge Holden rejected that and said that Ms Turner’s anti-Muslim comments were not immune from scrutiny and could be weighed against the DHB’s policy and Code of Conduct she was expected to adhere to.

The Judge said there was nothing to suggest Ms Turner’s Christianity had any bearing on the DHB’s decision. She said that freedom of religion cannot be taken to include the freedom to discriminate against other religions or to make derogatory comment about other religions and the people who practise them without consequences. Ms Turner’s right to hold religious or political beliefs did not prevent the DHB from taking disciplinary action in respect of her posts criticising Muslims, including attacking individual Muslim New Zealanders.

In respect of the posts regarding the vaccine, the Judge said that they were not covered by any protection against discrimination based on political opinion. The posts were directly contrary to the position being taken by the Ministry of Health and the DHB. The posts had the potential to undermine the trust and confidence of the public in the DHB, which was inconsistent with the social media policy and Ms Turner’s obligations to her employer.

It was accepted that Ms Turner’s Facebook posts were made outside her work time and that her Facebook page had certain privacy settings in place. However, the Judge said if the out of work conduct could negatively impact on the employer, for example by bringing it into disrepute, or if it erodes the trust and confidence the employer has in the employee, the employee’s out of work conduct can be the subject of disciplinary action.

The Judge commented that even if the material in the posts had been sent directly to one or only a few other employees or professional contacts, that could have been of concern to the DHB; being posted on a Facebook page with a much wider audience was even more of an issue.

Ms Turner also claimed that she has a right to free speech and that she is protected by New Zealand’s Bill of Rights Act (BORA). The BORA applies to acts done by the state. It does apply to some actions of the DHB. However, the Judge did not accept that the BORA applies to employment decisions.

In any event, the Judge said that the rights under the BORA are not absolute; they are subject to reasonable limits. Even if the BORA applied, the rights do not protect everything that an employee might say, particularly if it is contrary to the interests of the employer. The Judge concluded that Ms Turner could not use the BORA as a shield to protect herself from the consequences of her statements. She held that Ms Turner’s dismissal was justified.

While the judgment is pragmatic, it does highlight that New Zealanders may have to balance their right to freedom of expression and free speech with the obligations they may have to their employer. Where that line may fall is likely to be harder to determine in the heat of a general election. Read more....

The recent Employment Court decision involving Melville High School makes harrowing reading due to the factual circumstances established by the plaintiff’s, Kathleen and Ronald Cronin-Lampe. It also traverses some of the time limitations that apply in relation to bringing claims (and some of the exceptions).

Melville High School suffered an extraordinary number of traumatic events in its student body, staff and wider community over the period of time that Mr and Mrs Cronin-Lampe were employed. There were approximately 32 deaths in the School community, many by suicide, some by other unexpected tragedy, and some from illness. Mr and Mrs Cronin-Lampe were school counsellors and were actively involved in all these tragedies, both in the immediate aftermath and, usually, in relation to ongoing issues. They were also heavily involved in assisting students and staff in relation to a wide range of other very challenging situations.

Mr and Mrs Cronin-Lampe were diagnosed with post-traumatic stress disorder (PTSD). They claimed that they were so affected by their PTSD that they were in effect paralysed during their final year at the School and were effected to such an extent that they were unable to properly consider raising their claims within the 90-day time limit to bring a personal grievance claim in the employment jurisdiction. Because of this, they claimed that there were exceptional circumstances and that it would be just to grant leave to bring their claims out of time.

Generally, the reason we have a limitation law is to protect people against “stale claims”. The law encourages claimants to bring their claim in a timely fashion by setting out the maximum time they can wait before filing a claim.

The Employment Relations Act sets a short 90 day period for an employee to notify their employer of a personal grievance. If the 90 day time period is missed then the employee must make an application for leave to the Employment Relations Authority to raise the personal grievance out of time. This will only be granted where exceptional circumstances are established. Exceptional circumstances include where the employee has been so affected or traumatised by the matter giving rise to the grievance that he or she was unable to properly consider raising the grievance within the period.

The School argued that as Mr and Mrs Cronin-Lampe had consulted an employment lawyer at one point and had sought professional assistance from a clinical-psychologist and that they were able to consider raising a personal grievance but elected not to do so. The Judge disagreed, and said that Mr and Mrs Cronin-Lampe activities must be viewed in the overall context of their being unaware of their pre-existing PTSD and that they were increasingly unable to analyse their complex circumstances with a view to raising grievances.

Judge Corkill has granted leave to Mr and Mrs Cronin-Lampe to bring their claims out of time. The parties have been directed to mediation. If that is not successful, Judge Corkill will give his decision on the merits of Mr and Mrs Cronin-Lampe’s claims.

Mr and Mrs Cronin-Lampe’s journey to this point has been arduous. Besides suffering PTSD they have had to have their claims extensively litigated in the Employment Relations Authority, the Employment Court, and the Court of Appeal; and now back before Judge Corkill in the Employment Court.

Recently, in June this year, the Employment Relations Act was amended to allow employees more time to raise a personal grievance in relation to sexual harassment from 90 days to 12 months. Labour, National, ACT, and the Greens all supported the passing of the bill into law.

The private members Bill was originally sponsored by Labour MP Marja Lubeck. She said "This bill will ensure employees have time to process what has happened to them before deciding to come forward and proceed in a manner which best suits them — and their family". "Coming forward to report sexual harassment can be difficult, and it is common for victims of sexual harassment to wait a long time before coming forward. "Everyone has the right to feel safe at work, and it is important employees have time to consider what has occurred and feel safe to raise it with others."

The same arguments could be made for Mr and Mrs Cronin-Lampe’s case. Sometimes the circumstances are traumatic. Sometimes physical or mental injury can take a while to manifest. Sometimes it simply is more important to focus on regaining one’s health, or establishing new employment, than immediately considering redress. It may be time to revisit the general limitation of 90 days on bringing a personal grievance claim. Read more....