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

Public servants have been waiting some time to see some movement in the so-called “pay restraint” imposed on Government agencies following the Covid-19 epidemic. It has been anticipated that the Public Services Commission will shortly issue new guidelines for pay increases in the public service.

While efforts are made to ensure that government workers are fairly compensated their pay often lags behind that of their private sector counterparts. This disparity has become more pronounced since the Government applied a “pay freeze” in 2020, citing the threat of rising Covid-19. The Government softened its 2020 approach slightly in 2021 when the Public Services Commission directed government agencies to ensure that pay increases did not occur unless they met very strict criteria.

Agencies were permitted to provide modest pay increases for staff earning less than $60,000. Agencies could provide for small increases in pay for lower to middle earners by a modest progression within their salary band; or where there was a demonstrable recruitment demand that was not being met. There were to be no increases to salary bands or pay increases for those paid over $100,000. In exceptional circumstances agencies could obtain approval from the Commission.

While the Commission’s current guidelines remain in place, it is widely accepted that New Zealand is going through a “cost of living crisis”. Annual inflation is tracking at 7.2 percent. Stats NZ has reported that increasing prices continued to affect all household groups in the 12 months to December 2022. The cost of living for the average household (as measured by the household living-costs price indexes) increased by 8.2 percent in the 12 months to December 2022.

The basic costs of living have cut significantly into workers’ pay packets. “Higher prices for housing, food, and transport were the main contributors to the increase across all household groups,” NZ Stats consumer prices manager James Mitchell said.

Meanwhile the Ministry of Business, Innovation and Employment has recently provided an updated benchmark of rates that the Governments pays to contractors. It compares 2021 to the 2022 financial year using the average rate for the top 10 commonly reported job categories. It shows that there have been steep rate rises for some contactors of up to 46%, but also drops of up to 15%.

Overall, contractors were getting 8.5% more in 2022, just ahead of inflation and well ahead of most private and public sector wage rises.

IT contractors, as usual, dominate the high rates at up to about $250 an hour and averages about $150. But it is much lower paid public-facing roles, such as helpdesk, contact centre, and customer service contracts, that went up the greatest percentage in the year to July 2022. These average around $50-$60 an hour.

"We have high inflation and a tight labour market, including a skills shortage and low unemployment," said MBIE delivery services director Matt Perkins.

Of course the National Party has been castigating the Government about its spending on contractors. But both the leaders of the Labour Party and National Party have recently talked about increasing in-house core public sector capability to lessen reliance on contractors, though National has at the same time said it wants to cut the 60,000-strong core workforce of the public service.

It has been reported that the Commission’s new guidelines will give weight to a new pay approach called the Public Sector Pay Adjustment (PSPA) that has been used to recently settle some collective bargaining in the public sector. It is understood that the PSPA had been used to settle more than a dozen collective agreements so far, offering a $4000 pay rise in the first year and three percent, or $2000, in the second. But some powerful unions, such as those representing teachers, nurses and senior doctors, have rejected it as putting their workers’ pay behind inflation.

In the Public Service, about a fifth of collective agreements are settled or in a ratification process, while just under a third are in bargaining now or expected to start bargaining soon.

The Commission has declined to comment on what may be in its new guidelines "Because it could impact current bargaining".

What is clear is that the financial pressure on many government employees and their families is going to continue for some time. With high inflation, with higher mortgage costs and rent payments continuing, the cost of living is unlikely to reduce soon. Hopefully the Commission’s new guidelines will provide a well-deserved catchup to ensure we have a public service that retains and attracts talented people that can service us well. Read more

David Burton is an employment law barrister at www.burtonlaw.co.nz