Last weekend the Wairarapa Garden Tour was again held as a major fundraiser for the Pūkaha National Wildlife Centre, allowing the centre to continue its conservation work in its 940 hectare native forest reserve north of Masterton. Like a lot of fundraising events, it is supported by a dedicated team of volunteers who make the event work so successfully.

Tūao Aotearoa Volunteering New Zealand, reports that using information from Statistics New Zealand’s latest quarterly Labour Market Statistics that:

• Approximately 21.5% of New Zealanders undertake formal volunteer work. 
• The value of formal volunteering is estimated at $4 billion per annum.
• New Zealanders contribute a total of around 159 million hours of formal volunteer labour each year. 
• 11.8% of New Zealanders undertake informal volunteering work, contributing a further total of 7.8 million hours of volunteer labour per year to these figures. 

While this important work usually benefits society generally, it does have some challenges that need to be managed or the relationship between the “employer” and the “volunteer” can quickly become blurred.

The Employment Relations Act excludes a volunteer who does not expect to be rewarded and receives no reward for the work performed as a volunteer. “Reward” is a broad concept that can include intangible or non-monetary benefits. It has lead to some outcomes that at least one of the parties to the arrangement did not expect.

For example, in Hicks v Great Lake Aluminium and Glass Ltd, the “worker” was invited to the company’s Friday night food and drinks. When the company told him that he was no longer required this was enough to be considered a “reward” and enabled the “worker” to claim that he was entitled to wages and had been unjustifiably dismissed.

In The Salad Bowl Ltd v Thornley, Amberleigh Howe-Thornley was told at her interview that there was no reason why she would not be hired if she satisfactorily completed a three hour work trial. During the trial she was provided with a salad and this was considered to be sufficient to amount to a “reward”.

In another case, in Labour Inspector v Alpine Motor Inn and Café the “worker” was in New Zealand on a student visa which allowed her to work up to 20 hours a week. She applied for a housekeeper position. The employer intended to employ her full-time and could not do so while she was waiting for a work visa to arrive. In the meantime she was given accommodation and food and began to perform some work. The employer said that the “worker” was a volunteer who worked because she was bored. The Employment Relations Authority was not convinced and found that the food and lodging amounted to a “reward”.

If the parties want a volunteer relationship, it is important that they make it clear that the worker does not expect payment and does not receive payment. Otherwise, the worker may claim to be an employee. If the worker is successful in their claim they will be entitled to minimum entitlements; they will have to be paid minimum wage and cannot be dismissed unless it is justified.

Even if it is clear that the parties are in a volunteer relationship, the organisation should nevertheless be mindful that it may still have other “employer” type obligations to the volunteer. The Health and Safety at Work Act covers some volunteer workers, as does the Human Rights Act in respect of discrimination.

In the case of the Wairarapa Garden Tour volunteers, they receive a free t-shirt which identifies them as officially associated with the event. They are also given free access to the gardens on the tour. Such “freebies” could easily amount to a “reward” if the worker claimed that they expected to get rewarded for their work.

International Volunteer Day is an international event and is celebrated every year on 5 December. The purpose of the day is to recognize and support the spirit of volunteerism to help create a better future. It champions the impact volunteers have in communities, nationally and globally. 

Thankfully, it is rare that volunteers in genuine volunteer positions challenge the relationship. The unpaid work done by many New Zealander’s often goes unrecognised. A big shout out to our volunteers – they help make New Zealand a better place to be! Read more....

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....