Employment Update – Week 2, June

Updated: Jun 24, 2019

Statutory obligations to appoint on merit resulted in no lost remuneration

Appointments to public sector positions are subject to more regulation than appointments in the private sector. Section 60 of the State Sector Act 1988 (the Act) imposes an obligation upon the Chief Executive of a government department to give preference to the person who is best suited to the position. Section 77G of the Act imposes the same obligation more specifically to appointments in the education service. In a recent Employment Relations Authority determination, the existence of s 77G had the effect of removing an employer’s liability to paying lost remuneration to an employee despite the employee being found to have been unjustifiably dismissed.

In a recent determination, despite finding a dismissal to be unjustified the Authority declined to order the employer to pay lost remuneration due to the school’s obligation to appoint the most suitable person for a permanent role. Although the employer had genuine reasons based on reasonable grounds for employing the employee on a series of fixed term employment agreements, the employment agreement and its subsequent amendments failed to record the reasons for the fixed term employment or the way in which her employment would end or the reasons for it ending in that way, in breach of s 66(4) of the Employment Relations Act 2000. This rendered the dismissal procedurally unjustified.

However, the Authority observed the employer’s obligations under ss 77G and 77H of the Act requiring the employer to advertise vacancies and to hire based on merit for the person most suitable for the role. The Authority considered that the employer was obliged to hire the most suitably qualified persons for the permanent teaching positions which had become available. The employee had a fair opportunity to fully engage in the recruitment process. The Authority found that a fair, reasonable and objectively justifiable decision was made that there were better qualified and more experienced candidates than the employee. The employee was a first-year teacher and the other candidates had much greater experience and proven expertise than she did. The Authority considered that even if the employer had wanted to automatically make the employee a permanent employee it could not have done so without breaching the State Sector Act and the applicable collective employment agreement. The Authority considered that automatically appointing the employee to a permanent position in such circumstances would have resulted in an invalid appointment that could, in accordance with public and/or employment law, have been challenged. On this basis, the Authority found the dismissal to be substantively justified and lost wages were not awarded.

See Nelson v Westlake Girls High School Board of Trustees [2018] NZERA Auckland 355.

Fine for obstructing WorkSafe investigation

A Wellington man has been fined for failing to attend WorkSafe interviews and provide documentation requested. He was further charged for failing to ensure the health and safety of other persons after a tree-felling incident.

The court considered financial capacity in issuing a $2,000 fine for the obstruction offence. The maximum penalty is $10,000. The health and safety offence resulted in a $12,000 fine ($300,000 is the maximum).

Source: WorkSafe NZ

Reproduced by permission of Wolters Kluwer NZ