It all seems rather “Trumpian” in New Zealand politics at present. Do we need to do a factcheck before even contemplating the accuracy of statements being made by Ministers?

Recently, the Prime Minister made announcements regarding changes to maths to be taught in schools. His speech at the National Party Conference included references to what he labelled the "shocking" state of maths achievement after "years of drift and decay". At Year 8, he said, only 22 percent of students were at the expected standard for maths which he called "deeply concerning" and a result of "total system failure".

In support of his analysis he said "this is the first time we have assessed our kids showing where they are at compared to the year they are actually in. Essentially, that means many parents were being told that their children are doing just fine when the reality is they could be years behind." The failure to use assessment properly was "abhorrent" and the necessary interventions had not occurred.

Former Education Minister Jan Tinetti did not deny that New Zealand has a long-standing maths achievement issue but was very critical of the Prime Minister’s analysis.

“The big thing here that I’m very angry about is that this Government has manipulated data to justify their own crisis at the moment.” She explained “They’ve bandied round that figure of 22% now that is measured against the curriculum that was released last year, has not been taught so effectively you’re measuring kids against something that they’ve never ever been taught. That is manipulation”.

Likewise, Labour's leader Chris Hipkins called out the government for not using accurate data. He explained that "it's a bit like moving the goalposts after the kids have already kicked the ball" and said "I think the government should use data and information that's accurate. I think assessing kids against a curriculum that they have not been taught isn't a fair reflection of what kids are capable of”.

Maybe the Prime Minister was not aware of the irony when trying to justify his use of the data; “whether it’s 45% or 22%, we’ve got a problem in maths” he said.

Remaining in the education field, earlier this month the mega polytech, Te Pūkenga, tabled its 2023 Annual Report in Parliament, which showed that it had made more than $50 million in cost savings. The report showed it still had an operating deficit of $37.9 million at the end of 2023, but that was a significant reduction on the forecast deficit of $93.4 million.

Yet, as recently as June this year the Tertiary Education Minister Penny Simmonds told Parliament’s Education and Workforce Select Committee that the polytechnics were facing a $189 million financial hole.

Who knows what the actual position in the health system is. Doctors and nurses continue to raise the alarm about staff shortages and burnout. All too often patients are sharing stories of long wait times and delayed diagnoses. The Minister and Health New Zealand are adamant frontline roles are safe from cuts. Yet a copy of a presentation to senior leadership last week about "potential cost savings in hospital and specialist services" suggested a total reduction of 4492 staff, including 470 doctors, 1491 nurses, 338 allied staff and more than 2000 managers and admin workers. The newly appointed Health Commissioner denies he was aware of this and staff have been told to dismiss the presentation.

Contrast this to the obligation of good faith that is at the heart of employment relationships. Under common law it was an implied duty, but the Employment Relations Act introduced a statutory duty of good faith. It provides that parties to an employment relationship must deal with each other in good faith; and must not, whether directly or indirectly, do anything to mislead or deceive each other (or do anything that is likely to mislead or deceive each other). It confirmed that the duty of good faith is wider in scope than the implied mutual obligations of trust and confidence. The Act also provides for remedies, including possible penalties, if the duty of good faith is breached.

Data from Covid times, pre-high inflation times, and the cost of living crisis continues to be used to obfuscate the true position. New Zealand has gone and continues to go through some hard times. By treating us in good faith the journey and the measures that the present government wants us to take would be more palatable – with no wearisome point scoring and manipulation of the actual position. Trust and confidence makes strong governance. And Government? Read more....

A decision of the Employment Court in late July is the latest decision that confirms that the cost of unjustifiably dismissing an employee is getting higher. It follows a decision of the Employment Court last year that raised the “bands” used for assessing the level of compensation an employee may be entitled to.  

An employment relationship is fundamentally governed by the common law of contract. Under the common law, the parties to an employment agreement have mutual obligations of trust and confidence in their dealings with each other. But the special nature of the employment relationship means that an extensive body of additional rules and procedures also governs it. In New Zealand, most of these are found in the Employment Relations Act (the Act) and through decisions made through our courts.

When dismissing an employee, employers need to be able to show that the dismissal was justified; that means the employer will need to have a good reason to dismiss the employee, and that the employer followed a fair and reasonable process. Failure to meet either of these requirements is likely to establish that the dismissal was unjustified. If the dismissal was unjustified, the employee will be entitled to remedies proscribed by the Act. While reinstatement remains the primary remedy (although not in practice) the most common remedies awarded are lost wages and compensation for humiliation, loss of dignity, and injury to the feelings of the employee.

In the recent case of Gumbeze v The Chief Executive of Oranga Tamariki, Judge Smith in the Employment Court found that Mr Gumbeze was unjustifiably dismissed. Oranga Tamariki had dismissed Mr Gumbeze summarily for serious misconduct. The decision was made after an investigation of Gumbeze by an external investigator into complaints about him by his supervisor, some other supervisors, and following a review of three cases where he was the assigned social worker. Oranga Tamariki concluded that his behaviour, actions and social work practice amounted to serious and persistent misconduct.

Judge Smith noted that Oranga Tamariki could have concluded that some of Mr Gumbeze’s work fell below its expectations and required remediation. But Judge Smith concluded that Oranga Tamariki had not shown that either individually or together the concerns about Mr Gumbeze amounted to serious misconduct. The Judge also concluded that there were also problems with the investigative process.

Mr Gumbeze requested that he be awarded lost remuneration for one year. His evidence was that he did not receive any income during that period following his dismissal. Under the Act, the Court may order reimbursement of all or any part of the remuneration lost by an employee. Where a successful grievant has lost remuneration, the Act directs that the minimum amount that must be awarded is the lesser of the actual lost remuneration or to three months’ remuneration. The Act provides a discretion to award a greater sum. Judge Smith was satisfied that it was appropriate to exercise the Court’s discretion and to order more than three months’ remuneration and awarded Mr Gumbeze one year’s salary. Mr Gumbeze was also awarded $35,000 compensation.

GF v Comptroller of the New Zealand Customs Services was an Employment Court decision last year dealing with the mandate for all government front-line employees to be vaccinated for Covid-19. Chief Judge Inglis found that GF was unjustifiably disadvantage and dismissed for refusing to be vaccinated.

In dealing with the remedy for compensation for humiliation, loss of dignity, and injury to feelings the Chief Judge concluded that the “bands” for assessing quantum should be adjusted for future cases. In noting that the bands needed to remain current, the Chief Judge referenced that a similar view had very recently been taken by the Court of Appeal in the United Kingdom. Applying the Reserve Bank's inflation calculator the Chief Judge increased Band 1 to $0-$12,000; Band 2 to $12,000-$50,000; and Band 3 over $50,000.

The job market in New Zealand is much tighter than it was a year ago. Wellington is the hardest hit with the slashing of the public service. This means that a lot of highly skilled and highly paid public servants will be looking for roles in the private sector. But it will not be easy given that business confidence is the lowest it has been for a long time. Even in the private sector, consultancy firms around the world are making cuts. Redundant workers may be out of work for significant periods of time.

Both the Gumbeze and Customs cases involved public service organisations that are well supported by Human Resource departments and legal services. Both organisations were held to account and faced significant monetary awards, even without taking into account the legal cost of defending the claims. Big public sector employers such as the Ministry of Education are being held to account by the unions. If such employers get it wrong, the cost could be huge with a clear trend of increasing remedies for successful grievants. Read more....

Bringing up children takes work, often a lot of work. “It takes a village to raise a child” is an African proverb that means an entire community of people must interact with children for those children to grow in a safe and healthy environment. 

Sweden is a small country that has over generations built a society where citizens are taken care of from cradle to grave through its taxpayer-funded social welfare system. In a world first, Sweden has recently extended paid parental leave to include grandparents.

In Sweden, parents already have enviable parental entitlements they can access. Between the parents they can get a paid parental benefit that can extend to 480 days (about 16 months) per child between the parents. Of those days, 390 days are calculated on a person’s full income (about 80%), the remaining 90 days are paid at a fixed rate of 180 kronor (about $NZ28) per day.

Fifty years ago, Sweden was the first country in the world to introduce paid parental leave for fathers and not just mothers. Other enviable benefits for parents include the ability to work reduced hours until the child is 8 years old, and government employees can get those reduced hours until the child turns 12.

Under the recent change to the law, grandparents can also be paid to step in to care for their grandchildren for up to 90 days for the child’s first year. Parents have to transfer some of their parental leave allowance to the child’s grandparents. A parent couple can transfer a maximum of 45 days to others while a single parent can transfer 90 days.

Commenting on Sweden’s recent change, Dr Asha Sundaram, a Senior Lecturer in the Department of Economics at the University of Auckland, said “Research suggests that children who spend time with grandparents have better behavioural and cognitive outcomes. It's also beneficial to grandparents, and not only that, there's evidence that children who spend time with extended family also have better health outcomes."

How does New Zealand compare? Eligible parents can receive paid parental leave payments for up to 26 weeks. These have recently been increased from 1 July with the maximum weekly rate for paid parental leave going from $712.17 to $754.87 gross per week. The minimum parental leave payment rate for self-employed parents has also increased from $227 to $231.50 gross per week.

“We know families are doing it hard right now", Workplace Relations and Safety Minister Brooke van Velden said announcing the increases. "This coalition Government is committed to making sure that families and parents receive the support they need to give their new child the best start to life. Paid parental leave is one way that this is done."

At the other end of the scale, the United States is one of only a few countries that does not have a national paid maternity leave policy. The federal law provides eligible workers with up to 12 weeks of (unpaid) job-protected leave per year. At a state level, just 13 states and Washington DC provide some paid parental leave, but generally only for 3 months.

The Retirement Commission reports that already, one third of New Zealand’s workforce is aged 55+. New Zealand has one of the highest rates of people aged 65+ still working at 24%. This compares to the UK rate of 10%, Australia 12%, USA 19%, Japan 20% and Iceland 35%. Statistically, in New Zealand there are less grandparents that can assist bringing up a grandchild due to work commitments. If New Zealand were to consider extending parental leave to include grandparents, the first step would be to provide job protection for those temporarily giving up work to care for their grandchild. Like parents taking parental leave, the employer could be obliged to keep the grandparent’s job open for them while they take grandparental leave, unless it is a key position in the business, or the role becomes redundant? Consideration could also be given to the grandparents sharing in the entitlement to paid parental leave the government already provides? Both seem low cost ideas.

In New Zealand, Maori have whakatauki that express a similar sentiment to the Swedish system. He waka eke noa - a canoe which we are all in with no exception. This whakatauki implies that ‘we are all in this together’. He aha te mea nui o te ao? He tangata! He tangata! He tangata! What is the most important thing in the world? It is people! It is people! It is people! Our children are our future – should we be doing more to assist the village to give them the best start?  Read now....

Whistleblowing is an action taken by a person, often an employee, revealing information about activity within a private or public organisation that is conisdered illegal, immoral, illicit, unsafe or fraudulent. 

Julian Assange founded WikiLeaks and he has been persecuted for years over the release of classified military documents and videos from the United States over the war it waged in Iraq and Afghanistan, highlighting issues such as abuse of prisoners in custody, human rights violations and civilian deaths.

In 2000, New Zealand was one of the first countries to introduce dedicated whistleblowing legislation, to protect people who report their concerns of serious wrongdoing. That legislation, the Protected Disclosures Act 2000, has recently been replaced by the Protected Disclosures (Protection of Whistleblowers) Act 2022. The then Minister for the Public Service, Chris Hipkins, said “It is more people-focused and will make the rules easier to access, understand, and use”.

In a first of its kind, last month the Employment Relations Authority released a decision concluding that a former employee of the Bank of Zealand, Melissa Bowen, was unjustifiably dismissed because she was made redundant in retaliation for raising her concerns about a senior employee at BNZ.

Since raising her concerns with BNZ in 2016 and subsequently being made redundant, Bowen has tried to pursue her claims through various challenges in the ERA, the Employment Court and the Human Rights Tribunal. Through those decisions, various non-publication orders have been made, which continue to be upheld in the most recent decision.

What is known from the decision is that Bowen became concerned about the apparent conduct of a senior manager in commercial transactions, in particular in relation to two commercial arrangements. It is also known that the ERA confirmed that the concerns about the senior manager’s business conduct met the threshold of being alleged serious wrongdoing under the then applicable Protected Disclosures Act.

In the decision, the ERA found that BNZ had unjustifiably proposed to disestablish Bowen’s role in retaliation for her whistleblowing complaint; finding that the proposed restructure had no credible commercial basis. The BNZ was also found to have failed to act in good faith in respect of one of the claims, as the senior manager who was the subject of the complaint was “misleading and deceptive” in dealing with Bowen.

Bowen made a number of other claims which were unsuccessful, including bullying, threats of dismissal for breach of confidentiality, a second claim of retaliation, and BNZ breaching its whistleblowing policy.

In commenting on the ERA decision Bowen said “For a long time I wasn't able to talk about it, I wasn't allowed to and I wanted to protect the integrity of the investigation. Now I am able to talk about it, it's quite hard because it's been a very long campaign”.

New Zealand’s updated Protected Disclosures Act now extends the definition of “serious wrongdoing” to include “serious risk to the health and safety of any individual”, which could now include instances of bullying and harassment.

Protections are clarified to include confidentiality and no employer retaliation, unfavourable treatment and victimisation as well as immunity from civil, criminal, and disciplinary proceedings.

One of the agencies that serious wrong-doing can now be reported to is the Office of the Ombudsman, which at the end of June reported that there have been 203 protected disclosures and enquiries reported to the Office far this year. The Office said the figures this year are already 58% higher than the numbers recorded a year ago. "I applaud all those people who have come forward and reported wrongdoing or potential wrongdoing in their workplaces," said Chief Ombudsman Peter Boshier in a statement.

Bowen’s battle is not over yet. At both parties request, the ERA’s decision was only on the issue of liability (whether Bowen was successful or not in her claims). Any remedies that may be awarded in relation to the successful claims have yet to be determined. Also the issue of legal costs will also need to be resolved. That in itself is not clear. Bowen has been successful in some of claims, and unsuccessful in others.

It was reported by Julian Assange’s wife that he will take a dip in the sea, get some proper rest and try much-missed food as “a free man,” a day after the Australian landed home after making a plea deal with US prosecutors. Assange spent five years in a British prison fighting against extradition to the United States. Prior to that he sought refuge at Ecuador’s London embassy for nearly seven years.

Undoubtably, on the little that is known of the facts of Bowen’s whistleblowing complaint, it seems clear that she had serious concerns about certain transactions at BNZ and she tried to raise them with her employer. She lost her job over it. Her battle has been epic, taking on the deep pockets of an Australian owned bank. Unfortunately, her victory is likely to be hollow, given her legal costs in pursuing her claims. Read more....