Industrial negotiations in Australia seem to be tough, rough and lengthy. Perhaps they give us a taste of things to come in New Zealand over the next two or three years.

Unions will want to make the most of the Government’s promised industrial legislation, including fair pay agreements. Hopefully Kiwis resolve things in a friendlier manner than the negotiations between BP and its workers at a refinery in Kwinana, Western Australia.

BP and the union were engaged in a long-running dispute for a new industrial agreement at Kwinana. The employer wanted major changes to existing conditions. Arguments about the old agreement restricting productivity, efficiency and flexibility were put forward by the company. The dispute dragged on.

Scott Tracey and his wife Rhyanna Tracey decided to help the union cause. They prepared a video entitled Hitler parody and EA negotiations.

The video was prepared using a website called Caption Generator. The website contains a small collection of video clips with non-English dialogue and allows the user to add subtitles to create an alternative story or theme for the video.

The most popular video clip was one from the German language movie Downfall. The clip showed Adolf Hitler in his bunker in Berlin as he realised that the complete defeat of Germany could not be avoided and Berlin would soon fall.

There were thousands of these parody videos based on this movie by the time the Tracey’s created theirs. People use these video clips in a way that can be said to have become a meme.

Meme was coined by biologist Richard Dawkins. It is a cultural concept or behaviour which is passed from one individual to another by imitation and communication.

The subtitles added to the Traceys’ version clip parodied the bargaining for the new agreement in the Kwinana refinery. Hitler is assigned to the role of an unnamed BP manager in charge of the bargaining strategy.

He is informed that the employees have voted overwhelmingly to reject BP’s proposed enterprise agreement. He falls into a rage about the failure of the company’s bargaining strategy. He is angry about the continued resistance of the employees.

The Traceys’ video appeared as one of thousands on the caption generator website. It was very hard to find there. However, in late 2018 Scott Tracey posted a link to the video on a Facebook group, the members of which were all employees of BP at the refinery. Tracey showed the video to some BP employees working with him.

Management learnt of the existence of the video and commenced an investigation. Tracey was required to attend a formal investigation meeting at which he admitted he had shared the video. He was stood down the following day.

The company claimed that Tracey shared and distributed material which was highly offensive and inappropriate and that various BP policies had been breached.

Ultimately Tracey was dismissed in early 2019. The dismissal was effective immediately but with 4 weeks’ pay in lieu of notice.

Management felt they had been likened to Hitler and took strong exception to that. Tracey probably thought it was part of the cut and thrust of negotiations. The Australian Fair Work Commission was divided on the issue.

On appeal, the superior tribunal rejected the view that the video likened BP management to Nazis or Hitler. The video is not stating management were behaving or conducting themselves comparably to the Nazis in terms of humanity and criminality.

It drew a comparison for satirical purposes between Hitler’s situation in his final days and the position of that BP had reached in the enterprise bargaining process. The company was facing defeat according to the video clip.

The superior tribunal said that the position is even clearer when one considers the development and use of the Downfall clip as a meme. The clip has been used thousands of times in an entirely imitated way to give a satirical description of contemporary situations. This has the result of culturally dissociating it from the import of the historical events portrayed in the film. Anyone with knowledge of the meme could not seriously consider that the use of the clip was to make some point involving the atrocities of Hitler or the Nazis.

The superior tribunal acknowledged the reality of what was happening. It said that there was no doubt the clip would be understood by the reasonable viewer as satirising BP’s conduct during the bargaining process. That by itself did not make it offensive or appropriate.

The Appeal Tribunal said the industrial circumstances at the refinery at the time followed heated and protracted bargaining between the company and the union. It was entirely understandable that persons in opposing camps might engage in criticism of the other party’s position and conduct.

It would be unrealistic to expect a dispute of this nature to continue to its conclusion without any form of criticism and reproach being expressed, at least privately.

The appeal tribunal drew a distinction between criticising a party’s position as opposed to criticising personally the individuals. So the appeal tribunal found the dismissal was unfair. Tracey was restored to his previous position with no loss of pay.

If the case had occurred in New Zealand, the outcome would probably have gone the same way, especially given New Zealand law gives some added protections to those engaging in union activities.

The recent controversy surrounding the isolated Christian community of Gloriavale has sparked a number of investigations regarding concerns of exploitation, unsafe working practices and oppression. It includes claims that members are being forced to work up to 20 hours per day for little or no pay.

It appears that Gloriavale runs a number of commercial enterprises such as dairy and deer farms where members work with a view to making a profit for their community. Members receive some level of reward for their services in the form of accommodation and food.

In comparison to employees, volunteers hold a relatively tenuous legal position. Employees enjoy basic employment rights and legislative protection in relation to the work they do, including minimum annual and sick leave entitlements and the ability to pursue personal grievances. Volunteers are not afforded the same statutory entitlements and protections, although they may devote considerable time, effort and skills to the organisations or causes they work for. Volunteers are not an homogenous group. They may, but need not, operate under an agreement, receive some form of payment, and perform services on a regular or ad hoc basis. They may devote years to one cause or engage in one-off acts of kindness.

The law

Under the Employment Relations Act, an employee is any person of any age employed by an employer to do any work for hire or reward under a contract of service but it excludes a volunteer who:

• does not expect to be rewarded for work to be performed as a volunteer; and
• receives no reward for work performed as a volunteer.

In deciding whether a person is an employee the Employment Relations Authority must determine the real nature of the relationship between the parties. The Authority must consider all relevant matters, including any matters that indicate the intention of the persons, but it does not to treat as a determining matter any statement by the persons that describes the nature of their relationship.

Reward

 What constitutes a “reward” is not defined in the Act. It is arguable that it includes non-monetary recognition of services provided. This was the approach adopted in The Salad Bowl case where the Court considered that the worker who completed a three hour work trial was not a volunteer because she had expected to be rewarded (by way of monetary payment) for the trial period, and was in fact rewarded by receiving a free salad at the end of the day.

In another case, a worker at a campsite who received free accommodation and access to facilities, and payment of an allowance was also held to be an employee. The employee both expected and had received reward for his services. The Court distinguished the arrangement from a volunteering arrangement that is performed out of a sense of duty to the community or a commitment to a particular cause. The Court listed the features of such volunteering arrangements as including the organisation not being engaged in commerce (at least for a capital gain-making enterprise) and that the enterprise would not be sustainable but for the commitment of such volunteers. The Court noted that there is often no difference in the work undertaken by a volunteer or an employee. The critical difference is the expectation of reward being received.

Conversely, in another case, the worker was considered a volunteer even though he was rewarded. The worker was appointed to the position of Registrar for the NZ Dance and Dancesport Council, a non-profit administrative organisation representing professional and amateur dancers. There was a job description which had reference to an expense allowance being provided as determined by the Council annually. Even though the worker received this allowance, the Court considered that he was a volunteer. Motivation was relevant in that case with the Court finding the volunteer “took on the role because he, like many others, wished to make a positive contribution to the dance community.”

Are Gloriavale workers volunteers

 Are Gloriavale workers volunteers as has been claimed? The answer is unclear. Gloriavale does run commercial enterprises and its members receive some level of reward with the provision of food and accommodation. It is unclear if the members expect or receive any reward other than that provided.

If they truly are volunteers, then they are excluded from many of the employment protections we have in New Zealand.

Most people will have been either accused of being a bully, have been bullied or almost certainly know people who have struggled with bullying situations. It is an area that New Zealand is still grappling with. Both employers and employees can be uncertain how to navigate this problem.

A recent South Island decision from the Employment Relations Authority highlights common mistakes and gives guidance in this area.

The case comes from Dunedin and involved a woman who worked for a recruitment company. I will call her the grievant. She worked as a candidate consultant and an HR analyst. She was apprehensive of taking up the role because of how her potential manager appeared to have treated her predecessor. To her credit, she raised this with the manager. The manager’s response was that good communication was the key to the future.

Life went along reasonably until a year or two later when the section she and her manager worked in put through low billing. What followed will sound familiar to many.

The grievant became increasingly concerned about bullying by her manager. She did the right thing and raised her concerns with more senior managers. While the company was aware of the situation, the company claimed that she asked for no further action at that stage. They said her complaint was informal rather than formal. They took no further action.

This was the company’s first mistake. Once an employer is told of a bullying situation they cannot do nothing. While a formal investigation is not necessary in all circumstances, employers can begin taking small steps to manage the situation.

Clear directions should be given to the alleged bully, while taking care not to predetermine the truth of the allegations. The complainant should be told what has been done and what they can expect in the future. It would also be wise for employers to begin documenting what steps they are taking, and to check in periodically with the complainant.

The difficulties continued. A theme emerged of her being criticised by her manager for not performing.

Two things occurred which may well ring bells for some. Firstly, the grievant overheard a conversation between two managers that sounded critical of her failing to engage with work.

Secondly, she found an email which had been left on the printer which she described as systematic character assassination of her. Totally unsatisfactory and careless behaviour.

Within days the grievant raised a personal grievance and then the company commissioned an independent investigation through the company’s HR team. The company also suggested that the grievant work from home in the meantime to avoid interaction with her manager.

The grievant agreed with this suggestion. That was a good decision by the company, however it is worth considering whether earlier intervention could have avoided this situation entirely.

The investigation found that the grievant had been bullied by the manager and that the relationship between the grievant and the manager was irreparable. The company on the other hand decided it could work with both the grievant and her manager and proposed she should return to her role with the same manager.

The company also proposed for a series of meetings to take place to discuss the issues, particularly in the first week back. It was also planned that after the first week a more senior manager would provide ongoing support.

The company said they had no other suitable role for the woman anyway. The company expressed the hope that the manager and grievant would draw a line in the sand and move on.

This proposal was a serious mistake. Any proposed return to work is a critical decision which needs to be considered carefully. Care needs to be taken ensure that the grievant is protected from the bully.

The grievant said that the proposal was unacceptable because she could not work with the manager, but she suggested mediation instead. Unfortunately, the company would not attend unless proceedings were first filed.

It is hard to see how the company’s decision here could have helped things. Mediation is an opportunity for parties to freely and frankly discuss matters in a confidential setting. What is said at mediation cannot be considered in the Employment Relations Authority or court, so both parties are safe to talk about what is really going on and make a plan for the future.

The company’s response was to place the grievant on leave without pay and asked her that she return all company property to the office. This was another mistake and rather a fatal one. The grievant took the view that the company’s unilateral action was a dismissal and she raised a second personal grievance accordingly. The employer said the grievant was not dismissed because the job was there for her to turn up to. She was refusing to go to work.

The Authority decided she was unjustifiably constructively dismissed. There was a breach of a fundamental obligation on the employer’s part not to do anything that is likely to destroy or seriously damage the relationship of trust and confidence so important in any employment relationship.

The grievant asked for $20,000 from the Employment Relations Authority for humiliation and distress and was awarded all of this. She asked for all of the remuneration she had lost because of her dismissal as well and was given only the three months lost remuneration which is the starting point for such a calculation. The grievant no doubt also recovered some of her costs.

This is a good case because it illustrates so many of the employment problems I have seen arise associated with bullying in the workplace and poor follow-up decisions. The case is one of an employer who to some extent tried to do the right thing but never quite got there. Unfortunately this happens all too often.

Everyone will be familiar with the denial that you are developing a cold. Maybe your nose is just a little runny, or there is a slight tickle in your throat. We can convince ourselves that maybe if we just ignore it and persevere with our work, we can avoid the dreaded lurgy. It means our pay will continue, especially if we have used up our sick leave. Of course, illness pays no care to our work schedules, and a full-blown cold often develops.

Pre-2020 this was a common and mostly benign occurrence. While our colleagues may have been just a little irritated we risked passing our germs to them, little more would come of our decision.

But in this Covid-19 world, this same decision can have significant implications.

Take for example, Sebastien Klem. Klem said he had a light cough and no other symptoms, but, as a conscientious citizen, decided to take a test for coronavirus. Less conscientiously, after getting his test done, he then went to work.

He later tested positive for Covid-19 and was placed into quarantine for two weeks. His employer was unimpressed. In a letter to Klem, they said “he was totally irresponsible” and had violated his obligations towards safety. He was dismissed for serious misconduct.

Klem’s co-workers gave written statements that Klem was much worse than he made out. They said Klem told them he had a fever. One colleague said he was “pale and had red eyes and the heavy cough”.

His employer further claimed Klem ignored an earlier letter they sent to staff suggesting that they should stay home if they had the “slightest symptom”. They also said that given the seriousness of what occurred “there was no other possible punishment”.

Fortunately, none of Klem’s colleagues went on to develop Covid-19. Klem believes he would not have been dismissed had he not been tested for Covid-19, and is challenging his employer’s decision – in the industrial tribunal of France.

Although Klem’s case happened overseas I do not think the result would be any different in New Zealand.

But is this decision fair, and will such policies achieve safer workplaces?

Klem’s decision was one a lot of us could easily have made prior to Covid-19. It is a scary prospect to consider we might have Covid-19, and it is a very human thing to choose to put your head in the sand and hope the problem will go away, or is harmless. New Zealand has its own example of this.

Readers will recall the media attention in August this year when a maintenance worker attended work for two days with a cough at the Rydges Hotel. He put his symptoms down to a pre-existing health condition. He had passed his health checks on both days (such as temperature checks), however his case was not picked up until mandatory testing of staff was introduced.

So how do we manage human nature while these risks are ongoing? The words of Dr Ashley Bloomfield are salient, “the virus is the problem, not people … people are the solution”. On a nationwide scale, the approach to enforcing Covid-19 has been one of compassion. In the case of the Mount Roskill Evangelical Fellowship, it continued to hold church services during the recent level 3 lockdown in Auckland.

Despite that, authorities handled the situation by taking an educative approach. To date, it does not appear that any person has been charged for those events. The sub-cluster now appears to be contained and Auckland has moved to level 1. We will never know whether compliance with Ministry directions would have been better achieved had a more punitive approach been taken.

Whether employers could be expected to be similarly compassionate is another story, however.

A zero-tolerance approach could well encourage people to get tested and stay home. However, if any employee has minor symptoms, it may discourage them from getting tested at all and instead encourage them to hide their symptoms on the assumption they do not have the virus.

If Covid-19 did spread, it would potentially be difficult to establish which employee brought it to the workplace, especially if their symptoms were mild and had gone unnoticed by others. For this reason, care should be taken should employers choose to take the same punitive approach here. Such a policy could serve to discourage open communication which could serve to only heighten risks.

Practical considerations aside, to what extent can New Zealand employers adopt a zero-tolerance approach?

The answer (as with many matters in employment law) is it depends. To justify a dismissal for serious misconduct, the employer must show conduct which seriously and irreparably damaged the relationship of trust and confidence. Failure to follow lawful and reasonable directions can amount to this.

Health advice is that if you have any symptoms of coronavirus you should be tested. If you are tested for coronavirus you may be directed to self-isolate by medical professionals until you get the test results. The Ministry of Health says you should always stay home if you are unwell. Many employers will have issued policies and directions confirming this is their expectation

Furthermore, workers have good faith obligations with their employer which means you must be responsive and communicative with your employer. You must not do anything that is likely to mislead or deceive your employer. In other words, workers arguably have to be frank about their health and their tests.

Failure to follow these directions may well lead an employer to decide they have lost trust and confidence in the employee – especially where the decision was wilful and deliberate. However, where an employee had honest reasons for not following the health direction, like in the case of the maintenance worker at Rydges hotel, this could be difficult to establish.

Ultimately, any employee who does attend work with Covid symptoms, and having taken the test, risks an unsympathetic response from their employer. This is even more likely if that test were returned positive.

If you are unwell, get a test, let your employer know, and stay home until you know you are safe. It is in everybody’s interests – we do not know when the next community transmission will occur.