BuckettLaw was happy to successfully assist its client SMV in their case against the Ministry of Business, Innovation and Employment.
In its determination the Employment Relations Authority (ERA), which is technically part of MBIE, determined the Ministry had unjustifiably dismissed SMV, awarding her reinstatement to her former employment with the Ministry, 12 months lost wages, and $25,000 in compensation.
The case involved an employee whose career had been in the public service (19 years with the Ministry and its predecessor and 32 years in the public service). The dismissal effectively destroyed any possibility of a future career for SMV in the public service. The dismissal represented a black mark on her employment record with not only the Ministry, but more generally the public service.
This is because the Public Service Commissioner’s Workforce assurance standards (Public Service Commission - Workforce assurance) permits information sharing between government departments in a recruitment and employment context, and therefore a public sector employee’s employment record (including any disciplinary action), is likely to follow them to a new public sector employer, and is likely to impact their ability to obtain employment with a different public sector employer.
The ERA decision represents a restoration of SMV’s career in the public sector. Although SMV is still out of pocket in the sense she spent money on fees to obtain justice and did not receive full reimbursement for the period she was out of work, SMV will now be able to return to the public service with her head held high. BuckettLaw is pleased that reinstatement was awarded in this case because damages in and of itself would not have been an adequate remedy. Reinstatement in this sense was vital to restoring SMV’s public sector career.
Despite reinstatement being restored as the primary remedy by the government in 2018, there does not appear to have been any notable increase in reinstatement awards. BuckettLaw hopes this case represents a paradigm shift towards the ERA more readily awarding reinstatement. In BuckettLaw’s opinion, too often reinstatement is not, in practice, treated as the primary remedy.
The ERA determined the Ministry had failed to “conduct a full and fair inquiry into the concerns raised”, that “it was not open for the Ministry to conclude there had been misconduct”, and that the “failings were significant and resulted in unfairness to SMV”. Crucial to these findings was the fact the Ministry elicited complaints from a group of staff (rather than the process arising from a complaint, that it did not see SMV’s complaint about her manager as being relevant to its investigation into allegations from the group, that the group’s allegations were anonymised and represented to SMV as general themes, and that the investigator received information that was not disclosed to SMV during the process.
If you would like to read the ERA’s full determination, please find it here:
2023-NZERA-190.pdf
Take Aways from this Determination
For employers
It is important to get the process right when allegations are received from one (or more) kaimahi. A full and fair investigation is not always easy to get right, and it is important to receive legal advice in relation to what the process needs to involve, particularly if the investigation is going to be conducted internally. It is equally as important to ensure allegations are obtained, and portrayed, in a fair and transparent way. An employer should be careful not to be seen to eliciting concerns, and that it should provide them to the respondent in the form they were raised in. These matters are crucial to adhering to the principles of natural justice. BuckettLaw can assist you as an employer to ensure you get the process right, and that your substantive conclusions are ones that a fair and reasonable employer could come to in all the circumstances.
For employees
It is important to know your rights. Quite often BuckettLaw sees employees being put through unfair and inadequate employment investigation processes, yet those employees do not understand they are being treated unfairly. BuckettLaw encourages any employee going through an employment investigation or facing an employment investigation (whether you are the complainant or respondent to a complaint), to seek legal advice. BuckettLaw can assist you in holding your employer to account.
Contact our team now.
Matt Belesky, Senior Solicitor
