Strikes on the grounds of health and safety are rare and litigation to declare them unlawful is even rarer.

On 9 May 2023 the New Zealand Nurses Organisation gave notice of a one hour strike at Gisborne hospital on safety and health grounds. The strike notice named 24 nurses and care assistants that all work on ward 5 at the hospital. The employer, Te Whatu Ora, unsuccessfully applied for an interim injunction to stop the strike and the strike went ahead.

The starting point is that participation in a strike is lawful if the employees who strike have reasonable grounds for believing that the strike is justified on the grounds of safety or health.

At first blush, the legal principles for the employer applying for an interim injunction to stop the strike do not appear to be burdensome. Te Whatu Ora needed to establish three things. Firstly, that there was a serious question to be tried (or put another way, that their claim was not vexatious or frivolous). Next, Te Whatu Ora needed to persuade the Court that the “balance of convenience” favoured it; this requires the Court to consider the impact on the parties of granting or refusing to grant an interim injunction. Finally, the Court makes an assessment of the “overall justice” of the case.

The Employment Court decision of Judge Smith declining to issue an interim injunction makes dismal reading on the state of our health system; or at least in ward 5 at Gisborne Hospital.

That evidence described staff shortages, staff being required to work extra shifts, 12-hour shifts causing stress and fatigue, care rationing due to heavy workloads, inappropriate admissions and overflow work from other wards.

In August last year attention was drawn to an inability to provide time critical care and assessments, care rationing was occurring, care assessments were unduly delayed, the employees skill mix was unsuitable, patient dignity was being compromised, meal breaks were not taken, and there was a deteriorating patient requiring an urgent transfer.

In September last year there was a clinical emergency not manageable with existing employees and support, there was an inability to provide timely care assessments, an inability to monitor a patient requiring close constant supervision, care rationing, care and assessments being unduly delayed and insufficient essential equipment and supplies.

One nurse described her emotional and mental stress about coming to work anxious over how short staffed the hospital is, her concerns that the pressure of work means she may make a mistake in patient care because she was “beyond exhausted, both physically and mentally”. She has not been sleeping properly often waking at night going over the previous shift attempting to recall whether all medication and treatment had been given as needed.

Another nurse described that everyday ward 5 is short between two and three nurses but is full to capacity with high acuity, complex medical patients/palliative care patients and COVID patients. She referred to trying not to make mistakes but always feeling unsafe about that. She said she no longer considers the acuity of a patient when delegating workload because there is no point. She described each shift being actively care-rationed, fearing making a pressure-related mistakes, and not being supported.

Judge Smith said that what is noticeable about the evidence is that Te Whatu Ora did not deny the staffing problems of ward 5 (and the hospital more widely), and did not seriously question the nurses concerns for themselves or patients beyond pointing to their management systems which were said to be designed to try to respond to staff shortages and the obvious pressures that it creates.

When it came to applying the principles for an interim injunction and whether there was a serious question that the nurses proposed strike on health and safety grounds was unlawful, the Judge said that Te Whatu Ora’s argument was at best “weak”.

Every health dollar could be spent ten times over. The costs of litigating the strike will be huge, not only in lawyers fees, but in terms of management time diverted from improving our health system and patient care. Big picture: The success of the union in successfully defending the justification for the strike will give heart to the many others hugely overworked in our hospitals. This judgment exposes the front line of our health system, which could grind to a halt because of the health and safety concerns for the patients and those who care for them. Te Whatu Ora has opened the door to the likelihood of similar, probably justified, strikes on health and safety grounds. We are indeed lucky that our health professionals are so responsible. Read more....

In October last year Ben Bell was elected to be Mayor of Gore District Council by 8 votes. He is New Zealand’s youngest mayor ever. In this rural and largely conservative district Bell positioned himself as the "change" candidate. He reached out to young voters via social media and canvassed older voters through the RSA and other organisations. 

There had been little change in the leadership of the Council for many years. Tracy Hicks had been the previous mayor for 18 years. Steve Parry has been Chief Executive of the Council for over 20 years. In unusual circumstances, it is understood that Parry’s employment was agreed to be extended by the previous Council just days before the local body elections last year.

There have been reports that the working relationship between the mayor and the Chief Executive is broken. Reports say that the pair have not spoken in months. Media images show the Chief Executive turning his back on the mayor in a Council meeting.

One side suggests a vendetta or bias on Bell’s part. His mother used to work at the Gore District Council. Her employment ended last year with a legal dispute that cost the Council more than $300,000 in legal fees alone. The other side cites a select few of the ‘old guard’ on Council and a toxic workplace with a culture of bullying going back many years with a string of employees exiting with severance payments.

The relationship within the Council appears just as fractious. Last week the Gore District Council backed away from its push to vote on a motion of no confidence in Mayor Bell. But this is unlikely to be the end of the friction that exists within the Council.

While elected to lead the Council, under the Local Government Act the mayor has few powers. The mayor has the power to appoint the deputy mayor, to establish committees of the territorial authority and appoint the chairperson of each committee established.

The Chief Executive is the principal administrative officer of the local authority and is appointed by the local authority (the Council). In business terms, the Council is the governance body setting strategy and overseeing its implementation. The Chief Executive leads the management of the business, implementing the strategies to achieve the outcomes approved by the governance body. The Council is the Chief Executive’s employer.

Typically, the Chief Executive works very closely with the mayor. Good faith and trust and confidence lie at the heart of the employment relationship. It is reported that Parry said in March that the pair had “a very strained relationship” and “trust has eroded significantly.” Parry explained that “the issue has been the mayor’s preference to take advice from others – and earlier offers of assistance were rebuffed”.

It is understood that the parties agreed to try mediation to resolve the issues; and that an intermediary was appointed so that the mayor and Chief Executive did not have to meet directly. None of this appears to have been successful. It is reported that the Chief Executive is currently on “leave”.

A petition is circulating in Gore calling on the Chief Executive to resign. Prior to that the deputy mayor and another councillor requested the mayor resign.

There is little hope of resolving the impasse unless the Council unites with a common purpose of resolving the working relationship between the mayor and the Chief Executive. Failure to unite means that the Chief Executive will not be able to be held to account. One side will say the Chief Executive has been doing a good job, the other side will say that there are issues that need to be addressed. That means the Chief Executive is likely to be able to serve out the balance of his term of his employment. If the previous six months are any indication, this is unlikely to serve the Gore District well.

If the Council is able to unite, the Council has far more options. It could lead to an improvement in the working relationship whereby the mayor and the Chief Executive are able to work professionally together for the benefit of the Gore District. If the relationship is so damaged, it provides avenues to explore the usual employment law avenues to hold an employee to account; trust and confidence, misconduct or serious misconduct, bringing the employer into disrepute, incompatibility.

Age should not be used as an argument in the resolution of the Council’s woes. The youth of Bell should not be used as a basis of criticism, nor the age and length of service of Parry. There are good reasons why discrimination on the basis of age is unlawful both under the Human Rights Act and the Employment Relations Act. They should be judged on their achievements (or lack thereof). As should the Council and its councillors. None of these distractions seems to be serving the Gore District well. Read more...

Rimutaka Prison is in the news again with it being reported that nine prison staff still remain on paid special leave a year after investigations were commenced for allegations of misconduct. One staff member is reported to have been cleared of the allegations but still remains on special leave.

Chief Custodial Officer Neil Beales has said that eight of the employment investigations were ongoing, but all nine employees remain on leave.

It is understood that in May last year, nine employees of Corrections were placed on special leave after the Police passed on information about ten staff members, including management, whose alleged actions were of concern. One staff member had already resigned by the time the allegations became public.

The allegations made against the staff included claims of smuggling contraband such as phones and food, workplace bullying, failing to follow critical safety and security procedures, not maintaining professional boundaries, and inappropriately accessing prisoner information. It followed a police corruption investigation at the prison, dubbed 'Operation Portia', which began in 2020.

The Crown Solicitor in Wellington is understood to be currently assessing "a number of matters" in relation to the prison. Police would not confirm whether any charges had yet been laid, or whether the police investigation continues.

“Paid special leave” is a euphemism in employment law for a suspension. Suspension involves directing an employee not to attend work. It is almost always on full pay, with only very rare examples of suspension on no pay being justified.

A lawful suspension is usually only justified if the employer has a real need for it. It is likely to require a very serious issue that needs to be investigated; and that the employee’s presence in the workplace will give rise to some other significant issue (influencing witnesses, tampering with evidence, potentially exposing other employees/others to further matters that give rise to the investigation).

Usually the employer is under a duty to proceed expeditiously with an investigation, particularly when an employee is suspended. However, matters may become complicated for the employer if the Police or other government agencies become involved.

An employee does have a right against self-incrimination (a right to silence), but the exercise of that right does carry certain risk as it may breach the employee’s duty of good faith in the employment jurisdiction. The risk to the employee is that they will lose an opportunity to provide an explanation to answer the allegations, and the employer will be entitled to proceed on the evidence from the investigation.

Conversely, the risk to the employer is that if the employee exercises their right to silence the investigation will need to be postponed. If not, the employer will need to make a decision on the evidence that is available (which will not include the employee’s responses that are likely to be central to the employer’s investigation and the Police’s investigation).

The classic example of this involved the now defunct airline Ansett. Two Ansett pilots were involved in an aircrash that killed three people. The crash was investigated by the Transport Accident Investigation Commission to determine the reasons for the crash and by the Police to determine whether criminal charges might be laid against either of the pilots. The Police eventually decided to charge one pilot with manslaughter while the other pilot was not charged.

The Employment Court restrained Ansett from requiring either of the pilots to participate in a disciplinary process or otherwise dismissing or disciplining them until the criminal proceedings had been concluded.

Similarly, in Wackrow v Fonterra, the Employment Court issued an injunction to prevent Fonterra from traversing any matters in an employment investigation that related to charges that the Serious Fraud Office had brought against Mr Wackrow.

It would appear the Rimutaka Prison workplace investigation has been held up by the possibility that criminal charges may be made against some of those the Prison has placed on “special leave”.

There must be a balancing act in these situations. The employee has a right of silence in criminal investigations; and possibly should not be subjected to “double jeopardy” (having to defend the same matter in a number of jurisdictions). The employer should be able to investigate potential wrong-doing in its workplace with a view to protecting the employer, and potentially its employees and others from that harm. The employer usually has much “deeper pockets” than the employee and is more likely to be able to afford having an employee on paid special leave for extended periods. But what of the situations where the employer is not in a good financial position; or where the employee is found guilty but then decides to appeal that judgment. Should the employer be required to keep on paying? Read more...How long should an employee be paid when suspended?

Kellie-Jay Keen (also known as Posie Parker) was pelted with tomato sauce in Auckland and left the country.  Just weeks later she has appeared in Belfast in Northern Ireland at a Let Women Speak rally. Ms Keen is known for her opposition to transgender rights.

It is reported that hundreds of people gathered in the Donegall Quay area of Belfast and again police officers had to be drafted in to keep crowds of protesters separate at the Kellie-Jay Keen rally.

The original location was changed after organisers said they were threatened. Police said attendees should have "a clear understanding of their legal obligations". "As a police service we have a responsibility to uphold and balance the human rights of all of our citizens," they added.

Transgender and gender diverse are umbrella terms that cover a wide variety of gender identities. Not all transgender people want to conform to binary gender norms. Gender diverse people may identify as binary (man or woman) or non-binary (a grouping which includes a range of different experiences and identities that fall outside or do not strictly align with either end of a man/woman binary identity. Each person’s gender expression (how they present to the world) is unique.  

Some gender diverse people experience distress as a result of the discrepancy between their gender identity and the sex that they were assigned at birth. Some individuals transition between binary identities or have transition goals that may include different aspects of social, medical or surgical care.

It may surprise readers that there is no explicit protection from discrimination for people with variations of sex characteristics in New Zealand legislation.

Section 21 of the Human Rights Act recognises thirteen prohibited grounds of discrimination, including sex and sexual orientation. ‘Sexual orientation’ is defined under the Act to mean “heterosexual, homosexual, lesbian, or bisexual orientation.” The definition of ‘sex’ simply states that the term “includes pregnancy and childbirth”.

Although yet to be determined by the New Zealand Courts, the Human Rights Commission interprets “sex” under the Act to include gender identity, gender expression, and sex characteristics; and it accepts complaints of discrimination on this basis.

There have been calls to amend section 21(1)(a) of the Human Rights Act to specifically include gender identity, gender expression, and sex characteristics under the ground preventing discrimination based on “sex”.

In the workplace, the Employment Relations Act prohibits discrimination on the basis of “sexual orientation” and “sex” but it relies on the definition provided in the Human Rights Act.

In fact the Government information website on employment matters https://www.employment.govt.nz/ notes that “transgender people may be [emphasis added] protected under the Human Rights Act 1993 from unlawful discrimination on the grounds of gender identity in the workplace but this has not been tested in New Zealand courts.”

New Zealand has come a long way. Activist Shaneel Lal become the first transgender person to win a New Zealander of the Year award this year for their work in the rainbow community. The 22-year-old has been instrumental in the fight to ban conversion therapy and was active in the recent protest against anti-trans campaigner Posie Parker.

Having noted New Zealand’s progress, the Cook Islands are part of the Realm of New Zealand and the Head of State is the King of New Zealand. That means that while it administers its own affairs, Cook Islanders are New Zealand citizens. 

The Cook Islands have finally removed a law from its Crimes Act that could jail men for having sex with men. The law provided that "indecent acts between males" was an offence and was punishable by up to five years in prison.

Cook Island Prime Minister Mark Brown said in a tweet that it was a "historic day" for his Cook Islands Party "to stomp out discrimination of the LGBT community." Another perspective may be that the Cook Islands still has a long way to go, a journey that New Zealand is still on? Read more.....