Cyclone recovery levy ruled out, the wait for answers over State Highway 25A drags on and TV host Jerry Springer dies aged 79 in the latest New Zealand Herald headlines. Video / NZ Herald
Significant failings by a government department involved in administering employment law have resulted in a public servant receiving $25,000 in remedies and being reinstated to their job after they were unlawfully sacked.
The employee, identified only as SMV, had worked for the Ministry of Business, Innovation and Employment (MBIE) for 19 years, beginning when it was the Department of Labour, until her dismissal in October 2020.
She claimed her sacking was unjustified and laid a complaint with the Employment Relations Authority (ERA) seeking reinstatement, compensation, lost wages and financial benefits from continuous service.
MBIE, which provides administrative and corporate services support to the ERA, defended its decision, arguing it followed an investigation into conduct concerns and the alleged sending of sensitive information to an unauthorised email address.
ERA member Sarah Kennedy-Marton said in its decision, released April 18, the issues to be considered were whether the ministry’s decision to fire SMV and the process it followed was what a fair and reasonable employer would have done in the circumstances.
The remedies available to SMV, if the ministry had acted unjustifiably, were also deliberated.
The ordeal began in July 2020, when SMV emailed management seeking to discuss concerns about how she was being supervised after taking issue with her manager’s conduct - comments she made about her team’s backlog; questioning the lack of productivity during lockdown; and giving negative feedback about a plan to clear a backlog of work.
“SMV added that she felt tired, underappreciated and inadequate, she hated being at work and indicated that her performance would likely suffer as a result,” Kennedy-Martin said.
During initial conversations and meetings to determine how to deal with the complaint, SMV told the investigator she and the manager had worked together for a long time and while they had “blow-ups”, they managed to remain professional and she believed the issues could be resolved.
However, the complaint came as a shock to the manager when the manager was approached by the investigator.
“SMV’s manager was visibly upset about the complaint, had felt sick ever since receiving it, and was unsure whether she wanted to continue managing people.”
The manager, who was placed on sick leave, responded by detailing the impact SMV had on her, including how coming into work made her feel ill, she could not speak to SMV and avoided her.
The Ministry of Business, Innovation and Employment has been ordered to pay a former employee $25,000 compensation and reinstate them after they were unjustifiably dismissed in 2020. Photo / Dom Thomas
A move to a different role was canvassed when she returned to work and it was noted she still appeared fragile and shaken.
She later claimed there was no point in reconciliation with SMV, referring to a number of things indicating the relationship was significantly impaired and in her view broken.
SMV told the investigator she did not want to take the matter any further and she believed unless a formal complaint was made, nothing else would happen.
However, information that SMV’s team members had been heard speaking negatively about her and their work environment at a social function was received two days after the final meeting, sparking another investigation.
SMV was placed on leave and a letter advising her of the investigation detailed how her team dreaded going to work, were considering leaving, and the investigator’s concerns some individuals were experiencing mental health issues.
She responded immediately, both verbally and in writing, detailing how many of the issues were similar to the stressors raised in her earlier complaint, such as under-resourcing, pressure to perform and lack of support.
A group meeting with SMV’s team, including her manager, was organised to discuss the allegations, which included being micromanaged; being under pressure to perform but with no clear direction and being subjected to constant change; that individual performance was called out publicly; and that team members felt harassed.
It was established SMV had on one occasion sent and received sensitive and confidential client information to her personal email address, which she acknowledged and apologised for.
In explanation, SMV said it was necessary so she could continue working on processing an information request within the statutory timeframe during lockdown.
An investigation report concluded it was not appropriate and would be detrimental to the wellbeing and safety of the team if SMV was to return to work.
She was invited to a meeting by the general manager to discuss the preliminary view, then to a final meeting to discuss the proposal of dismissal, before being fired on October 9, 2020.
Kennedy-Martin said the authority was required to consider whether the ministry’s actions and the process it followed were what a fair and reasonable employer would have done in the circumstances.
Points at issue were whether the allegations against SMV were sufficiently investigated, whether she was made aware of the concerns raised, whether she had a reasonable opportunity to respond; and whether her explanations were genuinely considered before her dismissal.
Significant faults in the process were identified by Kennedy-Martin, who questioned the investigator’s independence and impartiality.
Kennedy-Martin ruled the ministry deprived SMV of the opportunity to correct errors or comment on the material being used to determine her future employment by failing to provide her with the information it relied on to reach the preliminary decision.
“This was particularly important because of the gravity of the matter, in that dismissal was being considered.”
Other procedural flaws identified included the likely unfairness to SMV of holding a group meeting; and eliminating her ability to respond to specific claims by providing anonymised and summarised allegations, to protect the identity of complainants.
Employers had equal obligations to both parties when an employee complained about a colleague, Kennedy-Martin said.
Mental health issues referred to in the letter informing SMV of the investigation were found not to have been caused by her conduct.
The decision to ignore SMV’s concerns about the impact her manager’s actions had on interactions SMV had with her team contained no analysis or rationale into how it was reached.
SMV’s inappropriate use of technology was deemed to be low-level.
“[Taking] SMV’s explanations together with her apology and reassurance it could not happen again, a fair and reasonable employer would not reach the conclusion that this was serious misconduct,” Kennedy-Martin said.
Another key concern when considering if the process was fair and reasonable was the ministry’s failure to provide SMV with the information given by her manager.
“In the context of an employment investigation, it did not paint SMV in a favourable light, it was clearly prejudicial to SMV and she was given no opportunity to respond because it was never disclosed to her.”
Kennedy-Martin said the investigator’s independence and impartiality had been undermined by allowing SMV’s manager to attend the group meeting, and the discussions about the impact SMV’s complaint had on her.
The ministry received a further black mark for not allowing SMV the opportunity to respond to the investigation report and related documentation before she received the preliminary report.
“This was especially important in this case, not only because dismissal was proposed but also because of the way in which the concerns had surfaced and how they were investigated.
“The fact they arose against a backdrop of SMV’s concerns about her own manager was also relevant and there was evidence also available to the ministry about the impact on SMV of that relationship.”
Kennedy-Martin found the ministry had not established a reasonable belief of misconduct warranting dismissal as a result of a proper inquiry due to the failings.
“It was not open for the ministry to conclude there had been misconduct.
“The failings were significant and resulted in unfairness to SMV.”
MBIE was ordered to pay SMV $25,000 compensation for hurt and humiliation, remunerate her for lost wages, reinstate her to a similar position but not her previous role within 28 days, and leave was granted for SMV to return to the authority with a claim regarding loss of benefit from continuous employment.
MBIE general manager people and culture, Jennifer Nathan, said the organisation noted the ERA’s findings and was considering the decision before deciding its next step.
Nathan confirmed MBIE provided administrative and corporate services support to the ERA but said determinations made by the authority were independent.
