The Employment Relations Authority (ERA) recently ordered the Ministry of Business, Innovation and Employment (MBIE) to reinstate an employee it had dismissed in a flawed process, SMV. Member Sarah Kennedy-Martin also awarded a year’s salary, $25,000 for hurt and humiliation, and costs.
SMV had been “officially” blacklisted but when we wrote Part 1 of this article we didn’t know what legal mechanism was used, other than a reference to a mysterious edict from the Public Service Commission (Te Kawa Mataaho; formerly the State Services Commission).
While looking further into this we were introduced to another public servant who was blacklisted in the last few months, and through our communications with her we discovered the legal mechanism.
Alice Howe is a registered nurse, who graduated in 2015. Her most recent job was at Manukau Women’s Prison. While not local (Howe is descended from Tainui iwi), she had a good rapport with the inmates. Howe recently resigned after 16 months, and was asked by her line manager “Ms W” to serve out her notice period of one month, which she did.
At this point we will introduce the Public Service Commission Workforce Assurance Model Standards (PSC WAMS).
Introduced in 2021, one of its objectives appears to be reporting of serious misconduct, or serious wrongdoing. We have reported plenty about the availability of secretive mediated settlement agreements to cover up serious wrongdoing, through gagging of whistleblowers or potential whistleblowers for example. We wrote the manual on this in late 2020 and the PSC WAMS appears to be an attempt to tackle not only the issues we raised, but also sex pests and anyone whose conduct is deemed to be unethical.
However, we are starting to see the PSC WAMS being weaponised against targets that the Public Service Act 2020 almost certainly didn’t intend to capture. You would have to be tough to be a nurse, even tougher to be a prison nurse, but the Chernobyl-grade toxic working environment with extremely high staff turnover, absenteeism, bullying and micromanagement would have to be experienced to be believed, we would think. At some point Howe was issued with a Performance Improvement Plan (PIP), which her manager Ms W claimed was “informal”. Through micromanagement, or worse, Ms W was able to assert that Howe was guilty of serious misconduct. Unable to take any more, Howe resigned. Absurdly, in a letter accepting her resignation, Ms W insisted that she work out her period of notice (as opposed to placing her on garden leave) while advising that she would be blacklisted for three years and cynically wishing her all the best with her career. That letter is below:
Alice Howe has advised us that she intends to register her constructive dismissal complaint with Corrections while demanding that her record be expunged on the grounds that the “serious misconduct” allegation against her was malicious. At this stage, she is trying to avoid bringing a personal grievance claim in the ERA.
Certain employment obligations survive termination – trade secrets and patient confidentiality being common examples. But Howe did not sign a Record of Settlement (which usually follows the bringing of a personal grievance claim) and is therefore under no obligation to treat her former line manager Ms W any better that Ms W treated her.
We wonder what Public Service Commissioner Peter Hughes plans to do about suspected widespread weaponisation of the PSC WAMS, given that workplace bullying rates remain stubbornly high in this country, particularly in the public sector.