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.....

Business leaders, HR professionals and recruitment consultants are going to have to get their heads around ChatGPT and other Artificial Intelligence (AI) equivalents when it comes to recruitment.

Businesses are all looking for the best candidates to fill their vacancies. They look at qualifications and experience and other skills such as communications or analytical ability. Curriculum Vitaes are scanned for errors that could indicate a lack of attention to detail or poor understanding of grammar or English. Superficial choices are often made on the basis of CVs.

AI is rapidly gathering pace, as are users of AI. The online tools can answer any question articulately with human-like responses. It is highly likely that ChatGPT is already being used to create CVs or is assisting with pre-employment assessments.

ChatGPT and equivalents can assist in creating slick looking CVs tailormade to the job that is being applied for. There goes the old-fashioned assessment when doing a first cut of CVs received by employers.

Michael Witbrock is a Professor in the School of Computer Science at Auckland University. He says we should be prepared for artificial intelligence that is like "google on steroids".

Our schools and universities are not sure what to do with ChatGPT and the like. But all our universities have now introduced software that can detect the use of AI tools such as ChatGPT.

It is understood that all eight New Zealand universities use Turnitin which claims that it can now spot AI-generated material with 98 percent accuracy. Turnitin regional vice-president for the Asia Pacific, James Thorley, said the software estimated what percentage of a text was written by AI and highlighted the offending sentences. Mr Thorley said AI-generated work was harder to detect than other types of cheating.

The battle will be on as to how long it will be effective as AI continues to improve, as do students who know sophisticated ways of using the tools.

It seems to be relatively easy for people to get chatbots to produce misinformation. A recent study by the Center for Countering Digital Hate found that researchers induced Google’s equivalent “Bard”, to produce wrong or hateful information 78 out of 100 times, on topics ranging from the Holocaust to climate change. No doubt AI will be able to produce convincing misinformation about education qualifications or job experience for CVs.

Employers are not without legal recourse. An employer is entitled to dismiss an employee for misrepresentations in an employee’s CV if the employer can show that the misrepresentations have caused the employer to lose its trust and confidence in the employee. It may also amount to a crime.

Way before AI was on the horizon, Maori Television dismissed its then Chief Executive, John Davy, for serious misconduct in 2002. The then Chairman, Derek Fox, said that the Board had received information indicating that Mr Davy had provided false information about his background. The Board moved immediately to suspend Mr Davy pending further investigations, and for which it subsequently dismissed Mr Davy.

Mr Davy later pleaded guilty to one charge of using a document, his CV, to obtain a benefit or privilege; namely a senior appointment with Maori Television. Even though Mr Davy received a substantial sentence of 8 months imprisonment, it is understood that the cost to Moari Television of employing Mr Davy was $82,000 including a salary advance and airfares.

In a similar case, in Dixon v Southern Community Laboratories, Mr Dixon applied for the job of Chief Executive of SCL. It was made clear to him that it was seeking someone with a “successful business track record”. Mr Dixon failed to tell SCL that he had been Managing Director of a failed company. The Employment Tribunal found that Mr Dixon’s misrepresentation amounted to serious misconduct and that the Board was justified in dismissing him.

ChatGPT and their equivalents mean that employers and any consultants used in recruitment are going to have to be even more diligent. Detailed reference checks go without saying. Detailed scrutiny of qualifications and background checks may become more common. The use of online assessment tools may need to be reconsidered given the manipulation AI may assist with.

If employers fail to do their due diligence and make poor recruitment choices they may face significant costs as a result. There may be significant costs related to employment investigations and disciplinary processes. There are likely to be significant costs relating to a failed recruitment and subsequent recruitment. Of course, there is the cost to the business of not having the person it thought they were hiring in the job. Read more

Businesses do not tend to thrive through financial downturns, or even worse, recessions. Hard decisions need to be made; efficiencies need to be found, changes or redundancies may be required.

Often these hard decisions are made in circumstances where managers are trying to work out what is around the corner; how long will this downturn last, will our customers stay with us, or will they be making changes, too?

Perhaps we have been through the most challenging circumstances we are ever likely to see for generations – a global COVID-19 pandemic, our international borders closed and national and regional lockdowns being imposed.

Standards unchanged

No matter how challenging the circumstances, the recent decision of the Employment Court of Drivesure Limited v McQuillan and Ors confirms that the usual “fair and reasonable” standards required by employment law will continue to apply.

Drivesure provides vehicle testing services at various sites. It had a contract with the Penrose Compliance Centre (PCC) to carry out such services at its site. That contract was unexpectedly terminated by a letter dated 6 March 2020, effective from 8 May 2020. Mr McQuillan and two other defendants were employed by Drivesure at the PCC site. The case involves a restructuring that ran into the nationwide lockdown in March and April 2020.

Drivesure unsuccessfully attempted to get PCC to reconsider terminating the contract. On 10 March, Drivesure advised the defendants of the termination of the contract with PCC. In letters dated 17 March, Drivesure wrote to each of the defendants proposing that all the positions at PCC would be made redundant. Drivesure said it had considered redeployment to other sites, but that was not possible.

Rushed job?

Drivesure wanted to meet with the defendants to receive feedback on the proposal, with a meeting suggested to take place on 24 March 2020. There was some correspondence between Drivesure and the defendants after the letter of 17 March, including a request from Mr McQuillan to postpone the meeting until 26 March as his legal advisor was busy. Drivesure was not prepared to defer the meeting but offered to meet any time before then, including before work and in the evening.

Circumstances intervened, and on 23 March 2020, the Prime Minister announced that New Zealand was immediately moving to Alert Level 3 under the Government Alert Level Framework and would move to a strict Alert Level 4 lockdown two days later. It was after that announcement that Drivesure said that it intended to make a decision on the redundancy proposal by 25 March 2020.

The defendants sent an email on 23 March 2020, and again the following morning, outlining why they could not meet, including their frames of mind, health and safety reasons for meeting in person, and their legal advisers being unavailable.

Time to consider feedback?

Drivesure considered that because of the lockdown, it was critical to act quickly to preserve the whole Drivesure business. Drivesure responded to the defendants on 24 March, saying that if the defendants did not wish to meet that day, then they were to provide any further feedback on the proposal in writing by 25 March 2020, after which Drivesure would consider all feedback received and make a decision. Each of the defendants responded in different ways:

• Mr McQuillan asked some questions about the selection process for staff and asked to attend mediation
• Mr Raj questioned the rationale for the proposed redundancy and questioned that PCC was his fixed site
• Mr Rafiq thought the decision was unfair, having regard to his history and experience with Drivesure. He offered to make changes, including changing his workplace to another site, reducing his working hours or days, or helping out in other areas of the business.

On 25 March 2020, Drivesure emailed each of the defendants advising that the proposal would go ahead and that their employment would be terminated.

Judge Holden found that even taking account of the circumstances that Drivesure was facing, the last part of the process was unduly rushed. It was not a process that was open to a fair and reasonable employer in all the circumstances.

The Court found no reason to reduce the relatively modest compensation awarded by the Employment Relations Authority of $8,000 for each of the defendants.

Interestingly, the case was argued on the basis of unjustified disadvantages rather than unjustified dismissals. The process was successfully challenged, but the substantive reasons for the redundancies were not challenged. Read more

Published in:

2023 HRNZ Autumn Magazine ISSUU Case Law Review.pdf