He won temporary reinstatement in July and now his bosses have been ordered to fully reinstate him, pay him lost wages and $10,000 compensation.
Employment Relations Authority member Jeremy Lynch said in a recently released determination that Kinzett was unjustifiably dismissed, and that the dismissal had impacted him negatively.
His actions were found to be blameworthy, and he was found to have bullied and sexually harassed the two firefighters, but those actions did not amount to dismissal.
Lynch ordered Kinzett to familiarise himself with sexual harassment policy and undertake any training his employer directed him to take as a condition of his reinstatement, while Fire and Emergency says it is considering appealing the decision.
While not commenting on specific details of the case, Fire and Emergency Waitematā District Manager Rochelle Martin said the organisation found it difficult to see a place for individuals whose behaviour amounted to serious misconduct.
Kinzett referred NZME to his lawyer Victor Corbett who said the case “underscored a crucial issue in employment law, what actually constitutes sexual harassment and how ordinary employees may not always be equipped to distinguish between acceptable workplace behaviour and conduct that breaches strict legal standards”.
A long series of complaints
The determination followed a long series of complaints between Kinzett and the officers known as A and B, also veteran firefighters and both based at the same Auckland station.
He laid a complaint about them in 2021 while they laid complaints against him in 2022.
A subsequent determination said all three had breached standards of conduct and an investigator was set to release a draft report in July 2023, but the scope of the investigation then expanded to include further serious allegations from A and B against Kinzett.
Kinzett’s evidence was that he would be “shocked if general locker talk to colleagues who I have absolutely no sexual interest in could constitute sexual harassment”.
Kinzett said his bosses had not provided any education on the changing standards expected, while they disputed his claims, saying Fire and Emergency initiatives included e-learning modules and a standalone sexual harassment policy.
Corbett said the case centred around the complexities involved when employees engaged in workplace banter or interactions that may later be subject to scrutiny.
The complaints against Kinzett were that he had made sexualised jokes in the workplace, Corbett said.
While Kinzett had broadly accepted that he said the things which were the subject of the investigation, Corbett said the average worker, especially those of an older generation might think sexual harassment “means you have a sexual attraction to someone, and from that you make sexually suggestive compliments or repeatedly harass them for a date”.
“It’s not as simple as that, telling an adult or ‘dirty’ joke that has a sexual connotation in front of co-workers can mean that you are sexually harassing them according to the law.”
He said the ruling served as a learning point for all parties, reinforcing the need for clear policies, proper training, and fair procedural handling of complaints.
‘We are taking action’
Martin said recent reviews had shown Fire and Emergency “have a way to go, but we have a plan, and we are taking action”.
Martin said the Eke Taumata programme had been developed in response to 20 recommendations from a 2022 Public Service Commission review.
“This includes raising the bar on what constitutes acceptable behaviour and conduct and taking action when people’s behaviour falls below acceptable standards, causing harm to their colleagues.
“We want Fire and Emergency to be a place where our people feel they belong; a place where they are supported and enabled to thrive, so collectively we can deliver service to our communities and each other.”
Corbett said while Fire and Emergency claimed to have lost trust in Kinzett, and despite serious allegations against him, it allowed him to continue working his normal duties for nearly 15 weeks following the final investigation report.
The ERA found that if Fire and Emergency NZ had genuine concerns about safety or trust, it should have suspended him earlier.
The organisation had failed to show that dismissal was the only reasonable response and had rejected alternatives such as a transfer, demotion and re-training, without strong justification.
“Ultimately, this ruling vindicates Russell, demonstrating that not all workplace allegations should lead to dismissal without careful consideration of intent, context, and proportionality.
“Despite Fire and Emergency’s zero-tolerance approach to bullying and sexual harassment this case is a reminder that employees should be given the opportunity to engage with evolving workplace standards rather than being subjected to overly draconian measures, such as summary dismissal.”
