Employee

Even Clark Joseph Kent (Kal-el) no doubt had the occasional employment issue at the Daily Planet. Like him in the presence of green kryptonite, you might be feeling a little vulnerable yourself if your employer is behaving unreasonably, taking disciplinary action against you, or threatening dismissal/redundancy.

We can provide you with valuable advice:

  • before you enter into an employment agreement;
  • when you are facing disciplinary action, dismissal or redundancy; or
  • when you believe that your boss is a Lex Luthor and you wish to avail yourself of the protections afforded by the New Zealand whistleblowers protection legislation.

If you are an employee, before you sign your employment agreement, talk to us. We can advise you whether your proposed terms are reasonable or even lawful.

If you are an employer, submit your proposed agreement to us for critical review. We may be able to help you avoid a costly mistake.

Personal grievances are defined in s103 Employment Relations Act 2000 as any grievance that an employee may have against his or her employer because of a claim based on:

  • unjustifiable dismissal; or
  • unjustifiable disadvantageous action; or
  • discrimination; or
  • sexual harassment; or
  • racial harassment; or
  • duress.

Discrimination, harassment and duress are more extensively defined in ss 104 - 110. Each of the terms employed in the s103 definition may be given an extended meaning in any employment agreement (s111).

Section 112 provides direction as to when the necessary choice is deemed to have been made to pursue a complaint under the Human Rights Act 1993 or to pursue a grievance under the Employment Relations Act, in those cases where either Act offers a remedy.

Under s113, the personal grievance provisions are the only way to challenge dismissal from employment “or any aspect of it”. This provision effectively abolishes the common law action for wrongful dismissal and other common law claims that are founded on any aspect of dismissal.

An employee must submit the grievance to the employer within 90 days from the date on which the relevant action occurred, or came to the notice of the employee (s114). The Employment Relations Authority may extend this period if it is satisfied that the delay was due to exceptional circumstances and it considers it just to do so. Section 115 of the Employment Relations Act sets out four situations where exceptional circumstances will exist, based on the traumatising effect of the matter giving rise to the grievance; “unreasonable failure” on the part of an agent to bring the grievance in time; failure on the employer’s part to supply a plain language explanation of dispute resolution procedures under ss 54 and 65; and the employer’s failure to give reasons for dismissal under s120.

Note that a grievance must be commenced in the Employment Relations Authority or the Court within three years from the date on which the grievance was first raised with the employer (s114). This contrasts with a limitation period of six years for all other actions (s142).

Mediation services

The chief executive of the Department of Labour is required to provide mediation services to support all employment relationships.

Where any matter comes before the Authority for determination, the Authority:

  • must first consider whether an attempt has been made to resolve the matter by the use of mediation; and
  • must direct that mediation be used before the Authority investigates the matter, unless the Authority considers, amongst other things, that meditation will not serve any constructive purpose (subs (1)(b); and
  • must, in the course of investigating any matter, consider from time to time whether to direct the parties to use mediation services.

Where the Authority gives a direction to mediate, the parties must comply with the direction and attempt in good faith to reach an agreed settlement of their differences; and proceedings in relation to the request before the Authority are suspended until the parties have done so or the Authority otherwise directs (whichever first occurs).

The Employment Relations Authority

The role of the Employment Relations Authority is defined as follows:

  • the Authority is an investigative body that has the role of resolving employment relationship problems by establishing the facts and making a determination according to the substantial merits of the case, without regard to technicalities;
  • the Authority must, in carrying out its role, comply with the principles of natural justice, aim to promote good faith behaviour, support successful employment relationships, and generally further the objects of the Employment Relations Act; and
  • the Authority must act as it thinks fit in equity and good conscience, but may not do anything that is inconsistent with the Act or with the relevant employment agreement.

The Authority is required to consider mediation at all relevant points in its investigations.

The Authority’s powers in investigating any matter include the power to call for evidence, to require attendance, to conduct examinations of witnesses and to take into account “informal” evidence.

The Authority has general jurisdiction over matters “arising from or related to” the employment relationship. The Authority also has jurisdiction over aspects of the Employment Relations Act such as those relating to union registration and internal affairs, good faith, and interim reinstatement, and the power to fix terms and conditions of a collective agreement in certain cases of breach of good faith.

With two exceptions, the Authority may, in any matter related to an employment agreement, make any order that the High Court or a District Court may make under any enactment or rule of law relating to contracts. The first exception is that the Authority may not make in respect of a collective agreement an order cancelling or varying the agreement or any term of the agreement (s163). The second exception is that where the Authority has the power to make an order cancelling or varying an individual employment agreement or any term of such an agreement under s69 (relating to unfair bargaining) or s162, the Authority may make such an order only if the Authority:

  • has identified the problem in relation to the agreement; and
  • has directed the parties to attempt in good faith to resolve that problem; and
  • the parties have attempted in good faith to resolve the problem relating to the agreement by using mediation services; and
  • despite the use of mediation services, the problem has not been resolved; and
  • the Authority is satisfied that any remedy other than such an order would be inappropriate or inadequate.

The Authority must comply with natural justice and act in a manner that is reasonable having regard to its investigative role (s173). The determinations of the Authority must state relevant factual findings, legal findings, conclusions and orders (if any), but need not set out a record of the evidence, submissions, or findings as to credibility or process of investigation (s174) This provision, according to the Explanatory Note to the Employment Relations Bill, “is intended to reduce the formality of the Employment Relations Authority’s decisions and thus enable the Authority to deliver speedy, informal, and practical justice to the parties”. As one aspect of this, the Authority is not required to permit cross-examination under s173.

Employees who expose serious wrongdoing in the manner prescribed by the Protected Disclosures Act 2000 are protected by that Act against retaliatory action.

The Act protects whistleblowing in both the public and private sectors, but it imposes greater demands on the public sector.

Private sector organisations are not required to have an internal whistleblowing policy; however it is recommended that employers consider devising one to suit their organisation size and structure.

An employee, who experiences retaliatory action because of the disclosure of serious wrongdoing in the organisation, may have a personal grievance pursuant to the Employment Relations Act 2000 or, a complaint of unlawful discrimination under the Human Rights Act 1993.

Introduction

The Protected Disclosures Act 2000 is sometimes referred to as the "whistleblowers" Act. It was enacted to promote the disclosure of information that the public has an interest in seeing disclosed, including serious wrongdoing, and to protect those employees who make those disclosures.

Definitions

These definitions are provided in section 3 of the Act.

Employee

The definition of "employee" under this Act is wider than the definition under the Employment Relations Act 2000 and in relation to an organisation includes:

  • A former employee;
  • A homeworker within the meaning of section 5 of the Employment Relations Act 2000;
  • A person seconded to the organisation;
  • An individual who is engaged or contracted under a contract for services to do work for the organisation (including a person who is a member of the board or governing body of the organisation).
  • A person concerned in the management of the organisation;
  • In relation to the New Zealand Defence Force, a member of the Armed Forces.
  • a person who works for the organisation as a volunteer without reward or expectation of reward for that work.

Only disclosures made in accordance with the Act are protected; unlawful disclosures of either official or personal information that occur outside this Act are addressed by either the Official Information Act 1982 or the Privacy Act 1993.

Serious wrongdoing

The Act covers both public and private sectors but the two sectors are treated differently by the Act; only public sector organisations are required to establish, and have in operation, internal procedures for receiving and dealing with reports of serious wrongdoing.

Under this Act, serious wrong doing includes, whether the wrongdoing occurs before or after the commencement of this Act:

  • An unlawful, corrupt, or irregular use of funds or resources of a public sector organisation;
  • An act, omission, or course of conduct that constitutes a serious risk to public health or public safety or the environment; or
  • An act, omission, or course of conduct that constitutes a serious risk to the maintenance of law, including the prevention, investigation, and detection of offences and the right to a fair trial; or
  • An act, omission, or course of conduct that constitutes an offence; or
  • An act, omission, or course of conduct by a public official that is oppressive, improperly discriminatory, or grossly negligent, or that constitutes gross mismanagement.

Organisation

Means a body of persons, whether corporate or unincorporate, and whether in the public sector or in the private sector; and includes a body of persons comprising 1 employer and 1 or more employees.

Appropriate authority

Without limiting the meaning of that term,

Includes:

  • the Commissioner of Police;
  • the Controller and Auditor-General;
  • the Director of the Serious Fraud Office;
  • the Inspector-General of Intelligence and Security;
  • an Ombudsman;
  • the Parliamentary Commissioner for the Environment;
  • the Police Complaints Authority;
  • the Solicitor-General;
  • the State Services Commissioner;
  • the Health and Disability Commissioner; and
  • Includes the head of every public sector organisation, whether or not mentioned above; and
  • Includes a private sector body which comprises members of a particular profession or calling and which has power to discipline its members; but

Does not include:

  • a Minister of the Crown; or
  • a member of Parliament.

Application

Not every disclosure by an employee can be a protected disclosure. To gain the protection of this Act, not only must the information be of the kind prescribed by the Act (in section 6) but additionally the employee must follow the Act's procedural steps for disclosure.

6 Disclosures to which Act applies

(1) An employee of an organisation may disclose information in the manner provided by this Act if

(a) the information is about serious wrongdoing in or by that organisation; and

(b) the employee believes on reasonable grounds that the information is true or likely to be true; and

(c) the employee wishes to disclose the information so that the serious wrongdoing can be investigated; and

(d) the employee wishes the disclosure to be protected.

(2) Any disclosure made in accordance with subsection (1) is a protected disclosure of information for the purposes of this Act.

Procedure

The Act prescribes a 4-tiered approach to disclosure of serious wrongdoing in an organisation:

  • The employee must make the disclosure in accordance with the internal procedure where one exists. If one doesn't, or the employee believes on reasonable grounds that the person to whom the disclosure should be made is implicated, either directly or indirectly, then:
  • The employee may make the disclosure to the head or deputy head of the organisation. If the employee believes on reasonable grounds that this person (the head or deputy head of the organisation) either is, or may be involved, OR either is related to a person who is or may be involved, OR it is a matter of urgency, OR there has been no action on the matter and 20 days have passed since the date of the first disclosure, then:
  • The employee may make the disclosure to the appropriate authority. If the employee has followed the correct procedure on the same matter and believes on reasonable grounds that no action has been taken by the appropriate authority and continues to believe that the information is true or likely to be true, then:
  • The employee may make the disclosure to a Minister of the Crown or Ombudsman (public sector only).

The final tier only applies to public sector organisations. If an employee believes on reasonable grounds that the head of a private sector organisation which they are working for is involved in serious wrongdoing and they need advice as to the correct procedure to follow, they can seek that advice from an Ombudsman.

PROTECTION

An employee who makes a disclosure of serious wrongdoing in accordance with the Act is protected by the Act against:

  • Unjustifiable dismissal and disadvantage by the employer's unjustifiable action. If the employee is an employee within the meaning of section 6 of the Employment Relations Act 2000 they may have a personal grievance under section 103 of that Act; and
  • Victimisation within the meaning of section 66 of the Human Rights Act 1993 (which is a form of unlawful discrimination); and
  • Civil and criminal proceedings; and
  • Disclosure of their own identity (subject to exceptions).

The reference to a "former employee" means that behaviour such as refusing to provide a post-employment reference because a protected disclosure was made during employment would arguably be covered by the victimisation provision in s25. By analogy, in Woodward v Abbey National plc [2006] EWCA Civ 822, the former employer had refused a reference to an ex-employee who had made protected disclosures relating to the employer's non-compliance with legal obligations. The Court of Appeal in the UK held that the public interest in protected disclosure would be "sold short" if former employees who had "blown the whistle" could be victimised with impunity after leaving.

If you believe that your organisation is involved in serious wrongdoing, contact Rennie Cox Urban Legal without delay for advice on how to resolve the matter.