Anyone who reads the papers or watches TV will know about Paul Henry's comments regarding Governor General Anand Satyanand, made during an interview with Prime Minister John Key, on TV1's Breakfast... not to mention the resulting furore.
And it should be well known that Paul Henry has now resigned (resulting in a last minute update to this blog!)
Leaving aside what Mr Henry said and why (which has already been extensively covered) this situation is interesting from an employment law perspective for two main reasons.
The first is in relation to whether there was in fact a 'suspension' from work and if so, whether this action was entirely lawful...
Unless, after following a fair process, Mr Henry agreed to the unpaid suspension, it may well have been an unlawful act by his employer. This is because there needs to be a fair process followed and good grounds before suspending an employee; and, as far as I am aware, there are no cases in New Zealand where an unpaid suspension has been held to be lawful.
The grounds for suspension should be set out in the relevant employment agreement and examples may include: where there are allegations of serious misconduct which need to be investigated; where the employee's continued presence in the workplace may jeopardise the employer's disciplinary investigation; where there is a risk the behaviour or conduct in issue may be repeated; or where there are health and safety concerns.
The grounds for a possible suspension are also relevant to the next point; which is that suspension is not intended to punish the employee. Indeed, if suspension was used as a punishment, it could arguably be evidence of pre-determination, prior to the employer completing its investigation process and deciding on an outcome.
It is also for that reason that suspensions are to be on full pay (and there are public policy reasons for this as well).
This case is somewhat different in that Mr Henry had already admitted the conduct and had apologised for it - so the facts were not in dispute. However, the seriousness of the conduct and implications for Mr Henry's employment would have required careful consideration after he had been given a reasonable opportunity to take advice and respond to the matters raised against him before any final decisions were made.
What wasn't clear (prior to his resignation), was whether TVNZ intended to take any further action - such as the termination of Mr Henry's employment, which was being called for by many - and whether TVNZ had told Mr Henry that dismissal was a possible outcome.
I have to admit, my suspicion is that the "suspension" wasn't really a suspension, but an agreement between TVNZ and Mr Henry to something of a 'cooling off' period and a form of disciplinary action. TVNZ were seen by the public to be reacting and responding to Mr Henry's actions and the adverse public comment, and Mr Henry was seen as being 'punished' by not being able to work (or be paid) for two weeks.
However, things have of course now moved on, and Mr Henry has resigned. This raises a second employment law question - particularly in light of what appears to have been a likely agreement in respect of the 'suspension': Did he jump? Or was he pushed?
Again, I suspect it is likely an agreement was reached. Both parties realised the writing was on the wall - TVNZ would potentially have needed to have monitored Mr Henry's comments more closely (which is problematic on live TV) and, regardless of whether you love him or hate him, those comments are Paul Henry. I suspect it wouldn't have worked for either party.
So it seems the interests of both parties were served by negotiating an agreement in respect of Mr Henry's exit. That negotiated exit may or may not (but is likely to have) resulted in a termination payment.
TVNZ's spokespeople say any payment was not taxpayer funded, however that does not mean that Mr Henry did not receive a termination payment - but who paid for it and how much was paid could be the subject of a confidentiality agreement between TVNZ and Mr Henry.
TVNZ will no doubt be hoping that this announcement and today's headlines will put an end to the issue and will assist in removing this story from the news. Its focus will be on finding a replacement to host Breakfast whose job description will no doubt require them to focus on bringing you the news - not making the news.
Bridget Smith is an employment lawyer at Minter Ellison Rudd Watts
