Employment Echo - August Edition

(Un)protected disclosures: Bowen v Bank of New Zealand [2024] NZERA 361

Employees can use the protected disclosure regime to disclose serious wrongdoing in the workplace. In a first of its kind, the Employment Relations Authority decision recently found that an employee was unjustifiably disadvantaged and unjustifiably dismissed by their employer as retaliation for making a protected disclosure.

In Bowen v Bank of New Zealand, Ms Bowen had made various protected disclosures during her employment with BNZ. The first were complaints in March and April 2016 which related to the conduct of two BNZ staff members (the Complaint). Soon after raising the Complaint, Ms Bowen's role was put at risk of disestablishment, which (unsurprisingly) resulted in her raising a personal grievance for unjustified disadvantage on the basis that the proposal was retaliatory. Following an unsuccessful mediation, Ms Bowen's employment was eventually terminated for redundancy.

The Authority found that the proposed disestablishment of Ms Bowen's role at BNZ was indeed retaliatory and, in particular, found that the proposed restructure had no commercial basis, and BNZ had failed to meet its good faith obligations. Weight was also placed on the fact that the 'proposal' was two years old by the time her employment was terminated. Various issues were raised by Ms Bowen during a consultation meeting on 10 July 2018. BNZ should have reflected on those issues and provided a full response. Instead, BNZ simply proceeded to take a 45-minute break and then confirmed the disestablishment of her role.

Ms Bowen made a variety of other claims that were unsuccessful. This case serves as an important reminder for organisations to be wary of implementing a targeted restructure process when the employee involved has raised a complaint. This is by no means a complete ban, but the business case would need to be genuine with the commercial rationale fully explained and supported to avoid an implication that the restructure was retaliatory in nature.

Protecting employees from threats and harassment: Wiles v The Vice-Chancellor of the University of Auckland [2024] NZEmpC 123

You may remember Associate Professor Siouxsie Wiles of the University of Auckland as a prominent academic commentator throughout the COVID-19 pandemic and New Zealand's lockdowns. Unfortunately, Wiles was subjected to abuse, ongoing harassment, and threats to her safety from a small number of people in the public as a result of her commentary.

Wiles raised a number of concerns regarding the harassment she was receiving from the public in connection with her work, beginning in early 2020, with the University of Auckland. In July 2021, she raised a personal grievance for unjustifiable disadvantage in her employment due to the University failing to take steps to protect her safety.

The Employment Court recently ruled that the University of Auckland:

• Breached its contractual obligations to protect Wiles' health and safety.
• Breached its statutory duty of good faith toward her by failing to engage with the issues regarding her health and safety.
• Breached its obligation to be a good employer under her collective agreement.

In essence, the Court found that the University's response to Wiles' complaints was insufficient and too slow. It had an obligation to proactively put measures in place to protect and support Wiles, instead of relying on Wiles to suggest actions she thought the University should take. Although the University did make some efforts to address this issue, it was within the confines of the existing (and, the Court found, insufficient) health and safety framework.

Wiles' was awarded NZ$20,000 compensation for general damages in relation to the unjustifiable disadvantage suffered. The Employment Court did not award a penalty for breach of contract, stating that it was not intentional and the University continues to takes steps to improve its response to situations like this.

This case is a reminder that health and safety obligations go beyond just protecting the physical safety of staff. Harassment in the course of an employee's duties should be responded to and taken seriously by an employer.

This newsletter contains contributions from: Harriet Phillips and Emilie Aitken.

For further information on employment related matters, please visit our Global Employment hub, where you can find updates from many jurisdictions, including New Zealand, or reach out to one of our partners - Charlotte Parkhill, Greg Cain, James Warren or Renee Butler.