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....

Published - HR Magazine Spring edition 2023

As technology continues to evolve to assist us with our businesses, HR professionals also have to consider the impact of technology and how this may affect the workplace. This may include being involved in restructuring the workplace if work is to be done differently or more efficiently with new technology. It may also involve the implementation of new technology to assist HR systems and monitoring in the workplace.

Technology used

Fingerprints are a unique biological characteristic of a person; they have long been recognised as an effective and accurate way of identifying someone. The recent decision of the Employment Relations Authority in Fonterra v Lanigan involved the introduction of fingerprint scanning technology (FST) for timekeeping and attendance.

By using biometric technology Fonterra wanted to reduce the administration time needed to support the collection of timekeeping and attendance data required by law to be kept, eliminate or reduce the opportunity to falsify or misuse information about timekeeping and attendance, and improve accuracy and consistency generally in computing employees’ pay, leave and other statutory and contractual entitlements.

The protection of encryption offered by Fonterra’s FST system is high. It instantaneously converts raw data (the fingerprints) to a numerical code. Once encrypted, the data cannot be decrypted. The fingerprints are not copied or stored but are converted to a binary code from which a person’s fingerprint cannot be recreated.

Mr Lanigan and about 30 other employees in the Maintenance Team at Fonterra’s Takanini plant were the last employees to resist the introduction of FST in Fonterra’s large workforce of approximately 8,000 employees. Mr Lanigan did not consent to offering his fingerprints to enable his registration for using the FST technology. He considered that by doing so, his privacy would be intruded upon and that Fonterra could not legally require him to do so by way of a direction or instruction.

Considerations

The Authority noted that there is a term implied in law in every employment agreement, requiring an employee to comply with a lawful and reasonable direction of their employer. The term is necessary to give practical effect to the right of an employer to exercise control over an employee. The direction must not be inconsistent with any express term of the employment agreement and must also be reasonable and lawful.

The Authority also considered the Privacy Act and the earlier Employment Court decision of OCS Ltd v SFWU and accepted that finger scanning technology had been approved in other jurisdictions such as Australia, the United Kingdom and Canada and that some principles could be extracted:

• Is the technology compatible with the contractual obligations of the parties?
• There is to be a balance between the need for the technology and the level of personal intrusiveness involved for the individual concerned.
• The employer has the right to introduce different systems of timekeeping technology subject only to reasonable consideration of valid concerns raised by the union and employees.
• The employer must take appropriate steps to inform employees of the new measures and to obtain their consent.

The Court in OCS Ltd noted that in our jurisdiction there is a general requirement to consult under the good faith obligations before implementing changes in workplace practices.

Authority’s decision

In analysing the introduction of FST at Fonterra, the Authority concluded that Fonterra had a lawful purpose connected to its role as an employer in wanting to collect biometric information from Mr Lanigan and the other workers.

In respect of the ability of Fonterra to give a lawful and reasonable instruction about the use of FST by Mr Lanigan, the Authority said that this is limited or qualified by the requirements for consultation and good faith behaviour.

The Authority found that Fonterra did have a discretion when selecting its systems and may exercise its business judgement as to what will best meet its needs. It said that this discretion appears to have been properly applied within the boundaries of the Privacy Act. The Authority also found that Fonterra did genuinely endeavour to balance the interests of Mr Lanigan in preserving his privacy against the benefits of using FST. It said that the level of intrusiveness into the privacy of Fonterra’s employees was at the lower end. The relatively slight intrusion on the privacy of Mr Lanigan and others was weighed up fairly alongside Fonterra’s business needs.

Accordingly, the Authority declared that Fonterra could lawfully and reasonably instruct Mr Lanigan to use the FST system for the purposes of recording time and attendance at work.

Should Mr Lanigan fail to follow such a lawful and reasonable instruction, it will be open to Fonterra to commence a disciplinary process with Mr Lanigan that may result in his dismissal should he continue to refuse to use the FST system.

Prior to Covid-19 New Zealand workers had comparatively less paid sick leave than most of the developed world. When the Labour government introduced a bill into Parliament to increase the minimum sick leave entitlement from 5 days to 10 days each year it was met by resistance from business organisations and the National Party.

The Head of Advocacy, Alan McDonald, at the Employers and Manufacturers Association argued against the move to double sick leave. He said “we are of the view that we are not quite sure there is a problem there that needs to be fixed. We are in the middle of an exceptional set of circumstances – that has been the driver behind the push for 10 days”.

Likewise, National Party workplace relations spokesman Scott Simpson said it was the wrong time to extend sick leave - “The Government is using Covid-19 as its rationale for doubling sick leave, but if that were the case then surely the change would be temporary rather than permanent”. Simpson said “doubling sick leave just piles more costs onto business at a time when they can least afford it, coming on top of minimum wage increases and the proposal for an extra public holiday”.

While the increase in sick leave took place in July 2021, last year was the first full year of that impact.

The recent Workplace Wellness Report 2023 prepared by Southern Cross Health Insurance and Business NZ was released last week without much fanfare. It is interesting because it reports on the wellness of New Zealand’s workforce during the year of 2022. It shows that New Zealand workers do not appear to be abusing their increased sick leave entitlements.

The Report showed an overall absence of 5.5 days for each employee in the year that Covid-19 restrictions were eased and New Zealand’s borders reopened. The previous highest result was 4.7 days in 2014 and 2018. The lowest result was in 2020 with 4.2 days (the year New Zealand had a long lock-down and borders were closed).

The Report says a number of factors should be considered when examining the results. It says Covid-19 has had an impact on the Report results. Lockdowns and employers allowing more employees to work from home resulted in the lowest recorded absences in 2020. The change from the lowest result in 2020 to the highest result in 2022 also likely reflects the lifting of Covid-19 restrictions, the opening of New Zealand’s borders, and an increased view by employers that it is desirable for employees to stay home if they are unwell.

It is also interesting that the 2022 results continue to show the trend that higher average levels of absence are reported for manual workers compared to non-manual workers. The 2020 results showed that the average number of days lost for each manual worker was 5.3 days while in 2022 the average number of days had increased to 7.1 days.

The Report says that this may also be impacted by Covid-19. More non-manual workers may be able to work from home and a higher proportion of them may continue to work even if unwell. Manual workers may be refraining from going to work due to employers telling their workers not to come to work if they are unwell.

Employers remain able to challenge perceived misuse of sick leave. Employers may require a medical certificate from their employee if an absence is for 3 or more consecutive days (they do not have to be working days for the employee). Employers may also require a medical certificate if they agree to pay the cost of it for less than 3 consecutive days.

The difficulty is that doctor shortages are well reported. For non-urgent matters there are reported waiting times of up to 6 weeks. It seems unlikely that an employer’s request for a medical certificate will find priority with our overworked doctors. And realistically, how can a doctor certify that an employee was sick the previous week without relying on the self-report of the employee to their GP?

While 2022 continued to present challenges to employers from Covid-19, it is pleasing to see that the doubling of sick leave entitlements has not resulted in a doubling of absences. The ability to work from home when mildly sick may also be helping to reduce the impact of the increased entitlement on the cost to business. Read more....