Cases of being able to successfully justify a dismissal for reasons of incompatibility between employees are rare.

How does the employer resolve the situation where an employee has a serious breakdown in the relationship where another employee has acted badly, or who is acting badly towards them, despite warnings to stop their bad behaviour, and where attempts to resolve the situation between the two have been unsuccessful?

The starting point is that the onus is on the employer to establish that the employee was substantially responsible in the breakdown, that the relationship was beyond repair and that the dismissal was carried out in a procedurally fair manner.

The cost of not meeting this standard may be high. In the recent appeal to the Employment Court in Ashby v NIWA Vessel Management Limited the Employment Court substantially increased the remedies awarded to the dismissed employee from three months’ wages to 12 months’ wages and compensation from $20,000 to $35,000.

Kim Ashby was employed in 1996 as a cook on a large research vessel operated for NIWA by a subsidiary company. The ship operates two alternating crews with approximately a month on/month off roster. The crews live in confined quarters 24 hours a day, seven days a week at sea. In 2009 Ms Ashby made a formal complaint alleging sexual harassment by the (then) First Mate. Ms Ashby claimed the First Mate made inappropriate comments to her and put inappropriate pictures on her computer. Ms Ashby’s complaint was investigated and upheld and the First Mate was issued with a warning and apologised to Ms Ashby. He also offered to be moved to the second shift if NIWA felt it was in the best interests of all concerned.

The First Mate was then promoted to Master in 2011 and Ms Ashby reported to him. In 2014 Ms Ashby confidentially raised bullying concerns about the (now) Master’s behaviour towards her. She asked to be moved to the second shift. NIWA spoke to the cook on the other shift about a possible swap but as he was happy where he was the swap did not occur. Read more....

A recent series of racist attacks on election campaign billboards of Asian candidates in Auckland show that race still remains an issue for a very small minority of our society.  Those faceless, cowardly vandals have reportedly left some in the community disturbed and hurt.

New Zealand is a more diverse society than we have ever been. We are more aware than we have ever been about bias and unconscious bias.

The composition of our courts today is far removed from the pale, stale males that generally stacked the benches of justice some years ago now.

There has been judicial recognition within recent judgments that cultural differences may need to be considered by our judges in what remains largely an anglo-centric legal system.

The recent decision of New Zealand’s highest court, the Supreme Court, in Deng v Zeng noted that it might be necessary to consider issues about ‘the cultural setting in an arrangement between two Chinese parties”. The New Zealand Law Society | Te Kāhui Ture o Aotearoa was invited to intervene in the appeal in consultation with NZ Asian Lawyers.

The Supreme Court made some general observations about cases in which one or more of the parties may have a cultural background which differs from that of the judge and the judgment provides guidelines for cases where it is appropriate for a judge to receive evidence bearing on the social and cultural framework within which the parties in a case may have been operating.

The court said a key to dealing with such cases successfully is for the judge to recognise that some of the usual rules of thumb they use for assessing credibility may have limited utility. For instance, assessing credibility and plausibility on the basis of judicial assumptions as to normal practice will be unsafe, if that practice is specific to a culture that is not shared by the parties.

Having said that, the Court reiterated that most of the usual ways that judges assess credibility while managing a cultural dimension may require no more than the most basic of all tools in a judge’s toolkit, namely context and common sense. Read more

Strikes and lockouts are largely an action of last resort in collective bargaining in New Zealand. When they do happen, they often gain the attention of the public and the media because of the disruption they can cause.

Making international news in New Zealand are the refuse collectors in Edinburgh as they go back to work to collect 12 days of rubbish accumulated on Edinburgh streets during their strike. If matters are not resolved, further strikes are set to start again in a few days time and the rubbish heap will grow again.

Our own Fire and Emergency (FENZ) firefighters have taken to the street. It is understood that FENZ received 22 calls in total across the country during the one hour strike by professional firefighters, but luckily there were no serious incidents.

Firefighters have been striking for better pay, increased staffing levels, increased mental health support and safer work procedures. They say they have felt unheard and stressed out over low staff levels that see them work overtime with unreliable fire trucks and equipment.

The Deputy National Commander of FENZ Brendan Nally, said it was disappointing the union had escalated strike action, despite a “substantial new pay offer which would see base salaries for all firefighters increase by between 8% and 19% over the next two years”. He said the organisation is “fully committed to trying to reach a settlement” but that over 13 months of negotiations, including 29 days of bargaining and three days of mediation, the union had not significantly moved from its position.

On the domestic front, the nation’s toilet paper supply is said to be under threat by the union. After a series of strikes, around 150 staff have been locked out of the Essity mill in Kawerau for the last few weeks as industrial action heats up there. It is New Zealand's only domestic toilet paper producer, with brands such as Purex, Sorbent, Libra and Handee. Currently, we are being advised that we won’t be “caught short”. Read more...

Published in Human Resources - Spring 2022

Under the Health and Safety at Work Act, employers have a duty to eliminate risks to health and safety, so far as is reasonably practicable. Alternatively, if it is not reasonably practicable to eliminate them, the employer must minimise those risks so far as is reasonably practicable. Health is defined in the Act as meaning physical and mental health. This essentially requires that employers protect employees against psychological harm and must accommodate employees impacted by mental health or disabilities.

Failure by an employer to provide a workplace that accommodates health and safety requirements is grounds for an employee to bring a claim of unjustified disadvantage or potentially unjustified dismissal. In addition, employers may potentially find themselves investigated by WorkSafe where a business has failed to manage significant mental health risks.

Mental health condition

The recent case of Scott v Vice Chancellor of University of Canterbury demonstrates that employers should take care not to stigmatise mental impairment. Dr Scott was awarded substantial sums for lost remuneration and compensation for the humiliation and loss of dignity she suffered.

The University of Canterbury was found liable for having unjustifiably disadvantaging and unjustifiably dismissing a senior lecturer with Bipolar Mood Disorder. Dr Scott had been employed by the University for 19 years when she was dismissed for medical incapacity and serious misconduct. Her dismissal followed two formal warnings and a long period of enforced sick leave. Dr Scott wanted to work and provided expert medical opinions confirming her fitness to resume duties. The University, however, was concerned Dr Scott was a risk to herself and others and could bring the employer into disrepute.

Breach of duty of good faith

Dr Scott raised personal grievances claiming she was unjustifiably suspended and unjustifiably disadvantaged when her IT access was removed. Dr Scott claimed the University’s failure to accept the medical advice that she was fit to return was a breach of the duty of good faith and that she was the subject of discrimination on the grounds of disability. Dr Scott also claimed the warnings given were unjustified actions causing her disadvantage, and that her dismissal was unjustified.

The University maintained that its concerns about Dr Scott’s mental health and conduct were those of a fair and reasonable employer. It considered it had followed a fair and reasonable process in addressing those concerns, and termination of employment was justified in all the circumstances.

The Employment Relations Authority found the University had unjustifiably dismissed Dr Scott and that its actions in placing her on sick leave and taking away her IT access had disadvantaged her. It also found the formal warnings unjustified, and that the University had failed to follow fair process and treat Dr Scott fairly and reasonably. It awarded Dr Scott around 18 months of lost wages and compensation of over $50,000.

Multiple failures

The lengthy decision outlines numerous failures on the part of the University. The University failed to maintain an open mind towards Dr Scott and genuinely consult and listen to her views; nor acknowledge Dr Scott as a competent and intelligent person with a valid perspective; nor give due weight to specialist medical reports or other evidence in Dr Scott’s favour that did not accord with its predetermined view; nor respect Dr Scott’s right to maintain some privacy over her medical records and be given a fair assessment; nor appreciate the significant impact its detrimental actions were having on Dr Scott’s ongoing health and wellbeing. The University had acted based on its fear of Dr Scott’s Bipolar Mood Disorder and viewed Dr Scott as a liability.

The lessons from the case are important as a significant number of employees experience mental impairment or illness at some stage in their lives that may impact on their employment occasionally. While mental impairment or illness should be viewed and accommodated in the same way as any physical injury or illness is managed, that is sometimes easier said than done. The employee may not be thinking clearly or rationally. Sometimes it is difficult to engage with the employee or their support network (and that can be hindered or prevented by privacy issues). Sometimes the employer needs to deal with conflicting diagnoses or prognoses from professionals. On a pragmatic level, these days it seems to take ages to obtain appointments for assessments or treatment with qualified professionals.

David is an Employment Law Barrister. David has over 30 years of employment law experience in New Zealand and overseas. His expertise is recognised by his peers. For six years, he was appointed to the Employment Law Committee of the New Zealand Law Society. Before that, he served on the Workplace Relations and Employment Law Sub-committee of the Law Institute of Victoria, Australia.