Employment Echo - September Edition

Employee wrongly labelled as 'gang member' reinstated

Ormsby v Fonterra Co-operative Group Ltd

The Employment Relations Authority recently ordered the reinstatement of an employee after he was dismissed by an employer who assumed he was "associated with gangs."

In Ormsby v Fonterra Co-operative Group Ltd [2024] NZERA 397, Mr. O worked as a charge hand in a Fonterra distribution centre. He was alleged to have acted in an aggressive and intimidating manner towards a team leader (Mr. Y) and an operations manager (Mr. Z). Only after Mr. O's union representative requested that others be interviewed about the events, the decision-maker sought written accounts from seven witnesses via email. Ultimately, the decision-maker concluded that Mr. O's conduct amounted to serious misconduct, and decided summary dismissal was appropriate.

During the Authority's investigation meeting, a number of witnesses (including the decision-maker) disclosed their belief that Mr. O had gang connections, which were said to give weight to the allegations that his conduct was intimidating and aggressive. These beliefs arose in part from observations made at a 'get set' day prior to the incidents that led to his dismissal. It was alleged he 'began barking' when a staff member was collecting an award, which was said to be 'a mongrel mob thing.' Witnesses said it was 'frequently talked about among the workforce' that he had gang connections. The allegations of gang connections were not raised during the disciplinary investigation.

Mr. O subsequently raised a personal grievance on the grounds that the investigation was not fairly conducted, and serious misconduct was not a conclusion that could reasonably be reached.

The Authority found that Fonterra failed to meet the statutory test of justification and concluded that Mr. O was unjustifiably dismissed. The investigation process was flawed for a number of reasons, including the failure to give Mr. O an opportunity to address the concerns about his alleged gang connections. The Authority found that rumours and impressions had affected the decision to dismiss him, and that this was more than a minor flaw.

The Authority ordered that Mr. O be reinstated to his role. His employer could place him in a different role, at his current worksite or a different location. His employer was ordered to pay Mr. O his lost wages and NZ$17,000 as compensation for the hurt and humiliation he suffered.

This determination emphasises the importance of ensuring employees are provided with all relevant information gathered in the course of an investigation and are given an adequate opportunity to respond. Decision-makers should be particularly conscious of any information or knowledge they have which may impact on their decision and ensure they are transparent about those matters.

Is a trust a 'person' under the Health and Safety at Work Act?

WorkSafe New Zealand v RH & Jury Trust and others

A tragic incident on a dairy farm in Waiotahe left a young child fatally injured after his clothing became caught in a piece of farm machinery. The child was visiting his grandfather, who worked on the farm, which was owned by the RH & Jury Trust (Trust).

WorkSafe charged the Trust and, in the alternative, the trustees, under section 37 of the of Health and Safety at Work Act, as a person conducting a business or undertaking for failing to ensure the farm was without risks to the health and safety of any person. WorkSafe perceived that in this instance, it was more appropriate to charge the Trust because the failures leading to the incident were systemic rather than personal failures of the trustees. The central question at issue in this case is whether the Trust satisfies the definition of a "person" under the Act.

In the District Court, the charge against the Trust was dismissed on the basis that a trust is not a person. The trustees are accountable for the way they carry out their duties and thus the liabilities of the trust attach to them. Accordingly, the Trust was not charged and instead, the individual trustees were.

On appeal by WorkSafe, the High Court concluded that a trust is not a 'person.' However, the trustees of a trust collectively are a body of persons within the definition of 'person' under the Act.

Therefore, the trustees collectively can be charged.

The Court of Appeal has recently given leave for a second appeal on two key questions:

1. Is a trust a 'person' under the Health and Safety at Work Act 2015?
2. Can the trustees of a trust comprise a 'body of persons' within the definition of 'person' in the Health and Safety at Work Act 2015?

Until the Court of Appeal delivers its decision, businesses operating through a trust should remain vigilant of their health and safety duties. Trustees should consider the management of health and safety risks and whether these are adequate.

Changes to parental leave entitlements

Bill improving accessibility to parental leave payments passes first reading.

The Regulatory Systems Amendment Bill (No 3) (the Bill), which aims to enhance paid parental leave provisions under the Parental Leave and Employment Protection Act 1987 (Act), has recently passed its first reading in Parliament.

Currently, under the Act, a parent is required to stop working when they become the primary caregiver to access parental leave payments. This is often problematic for non-biological parents who become primary caregivers suddenly, or for those who decide soon after gaining custody of a child that they need to stop working to care for the child. Under the current law, continuing to work or working out a notice period after becoming the primary caregiver bars a parent from accessing any paid parental leave.

The proposed amendments within this Bill would allow those parents access to paid parental leave, provided that they stopped work within a reasonable time of becoming the primary caregiver. Although the specific amendments to the legislation have not yet been confirmed, Workplace Relations and Safety Minister Brooke van Velden has proposed that it has been developed to support Kiwi families in diverse parenting arrangements.

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.

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