Blacklisting hinted at in unjustified dismissal determination – Part 1 of 2. By Tristam Price

The Employment Relations Authority (ERA) recently found that “SMV” was unjustifiably dismissed from her management position in the Ministry of Business, Innovation and Employment (MBIE) and ordered MBIE to pay her a year’s salary, $25,000 for hurt and humiliation and costs, and reinstate her.

2023-NZERA-190.pdf (employment.govt.nz)

ERA Member Sarah Kennedy-Martin probably didn’t enjoy making a finding against MBIE, of which the ERA is a part, but being independent is what the job entails. To emphasise the point that no Crown entity should be allowed to appear to be above the law, Kennedy-Martin noted:

[80] SMV ... could not seek new employment due to her health and the futility of seeking work in the public sector because of the dismissal. Consistent evidence was provided by SMV and her family and friends of the impact on her.

[86] ... The final termination letter made it clear that resignation would not be accepted in this case and the decision maker’s responsibility extended to the public sector as a whole to prevent any future incidences of inappropriate behaviour. It was clear that the Ministry knew SMV would not be able to work in the public sector again placing an even greater responsibility on it to ensure the process it followed and the decisions it made met the statutory tests in the Act of what a fair and reasonable employer could do in all the circumstances.

Details of the shortcomings in the way MBIE treated SMV before dismissing her in October 2020 are set out in the determination and don’t need to be repeated in this article. But what’s interesting is the tacit acceptance of blacklisting alluded to in Paragraphs 80 and 86 of Kennedy-Martin’s determination. It’s something like “You’re fired, and we’ll ensure you never work for the New Zealand Government again”. An aggravating factor was that SMV is a career public servant with 19 years of service to MBIE and its predecessor, and 32 years as a public servant overall.

But as Feilding daycare centre owner Pauline Murphy discovered in 2021, blacklisting early childhood education teachers she didn’t like can cause blowback as soon as media engage. In extreme cases this can lead to the demise of a business, as happened here. And in 2015 NZCU Baywide received a glorious tar ‘n feathering when the Human Rights Review Tribunal awarded $168,000 to former employee Karen Hammond for blacklisting her.

MBIE is probably too big to be noticeably impacted by an adverse decision such as this, especially when considering what SMV’s lawyer Barbara Buckett described as a problematic edict from the State Services Commission that unfortunately enables blacklisting across the public sector. We’ll elaborate in Part 2 of this article.

Colleagues who contributed to SMV’s dismissal have not been named due to the non-publication order within the determination. No doubt some will be unhappy about seeing their own work being called out by the ERA as deficient, and perhaps the prospect of having to work with SMV again. For those employees two options come to mind: suck it up, or don’t let the door hit them on the way out.

Kennedy-Martin’s determination goes on to provide MBIE with some guidance in that area:

[97] The parties are directed to attend mediation to assist in facilitating the successful reintegration of SMV back to work.

https://www.leightonassociates.co.nz/post/blacklisting-hinted-at-in-unjustified-dismissal-determination-part-2-of-2-by-tristam-price