Updated: Sep 25
Workforce Assurance Model Standards (WAMS) is a process for flagging jobseekers against whom a finding of serious misconduct was made by a previous public sector employer. WAMS reports are active for three years and are likely to prevent the affected employee from working in the public sector for that period, unless their skills are in desperately short supply.
WAMS was implemented under the Public Service Act 2020, effective March 2021.
Previously, serious misconduct could be covered up with non-disclosure agreements, typically signed at the conclusion of employment mediation under Section 149 of the Employment Relations Act. That tended to create problems for subsequent employers and that is one of the main issues WAMS seeks to address, and probably does address most of the time.
WAMS reports are therefore created out of findings of serious misconduct. While most WAMS reports are probably legitimate, we suspect that a large number have been applied maliciously, particularly in workplaces with toxic working relationships and a severe bullying problem. To research this properly required us to take on a quasi-advocacy role. I recently advocated for one affected employee, a prison nurse. While technically the result was mixed, our journey of discovery provided clarity for those who engaged with it (or were adversely affected by it), in an emerging area of employment law.
We corresponded with the Public Service Commission on this issue, in order to provide guidance on how the employment law industry might advocate for employees who seek redress for alleged reputation theft, namely an inappropriate finding of serious misconduct arising from a trumped-up or heavily flawed disciplinary process.
Normally, we would not concern ourselves with the ending of an employment relationship. If an employee doesn’t like the way they have been treated, they can get their CV on the street. It’s up to the employee to maintain marketable skills to assist with job hunting if their current job is not working out anymore. Most incidences of constructive dismissal are resolved organically, without a personal grievance being raised in the Employment Relations Authority and/or in mediation.
But what happens when a departing public sector employee is saddled with a bogus finding of serious misconduct, with the inevitable blacklisting (career blocking) associated with a WAMS report? This is an extreme form of bullying, so what should you, the employment law practitioner (lawyer or advocate) do when asked by a client to assist?
First, a notification should be made to a senior manager, preferably not one involved directly in the blacklisting, of the employee’s belief that they were constructively dismissed, without raising a personal grievance claim at that time. This assertion should be supported by a general explanation of the employer’s contribution to the breakdown of the employment relationship, as a basis for demanding that the employer’s purported finding of serious misconduct be vacated, which would make the WAMS report fall away. The Public Service Commission has confirmed to us that it is legally possible to “downgrade” a finding of serious misconduct, to misconduct below the threshold at which the WAMS protocol is triggered.
If confirmation of this downgrade is received, that would normally be the end of the matter. The employee will then be able to move on and apply for public sector positions with confidence, paying the practitioner directly for their services, and claiming the moral high ground.
What if the employer refuses?
Sometimes, however, the employer will refuse to vacate its purported finding of serious misconduct. That’s when the practitioner needs to step up. Raising a grievance should still be avoided because usually that would result in the parties signing a Record of Settlement in a mediation, which would almost certainly have a non-disparagement provision that commits the employee to silence. But that is actually worthless to them because they’ve already been blacklisted under the WAMS protocol, which is worse than disparagement. Restoring the employee’s reputation will then require the employee’s unfettered right to free expression to be preserved, and that means keeping them out of mediation!
The practitioner can then find out more specific details of unsatisfactory conduct by former colleagues of their client. Asserting that the working environment was toxic, by itself, is probably not going to cut it. But in my client’s case, examples included strategic absenteeism (failing to provide cover when someone is absent), sabotage (hiding of medical supplies) and blackmail (a threat to complain to the employee’s regulatory body the Nursing Council if they resigned).
When confronted with these assertions, a senior manager or HR advisor is usually not going to be all that invested in upholding a whimsical finding of serious misconduct against a former employee, when the team culture is rotten to the core. But there are exceptions. The day after our nurse complained about the junior manager to the senior manager, the junior manager made a retaliatory complaint to the Nursing Council, triggering a competency assessment. The practitioner would then need to step up again. In our case, that entailed providing written evidence of a vendetta to the Nursing Council, along with a NZNO union representative, with a suggestion that any reports coming from either of two sites should be treated with skepticism.
While technically we did not succeed in having an allegedly bogus finding of serious misconduct withdrawn, we did achieve the following:
created a paper trail demonstrating that good-faith efforts were made to resolve the issue without forcing the employer to defend or settle a personal grievance claim. The intended audience then becomes any potential employer with whom my client applies for work.
kept the client out of mediation to preserve their right to free expression. If there’s no mediation then there’s no non-disparagement agreement and therefore no basis for the employer to legally threaten the employee (or if they do, the employee is able to respond with a counterclaim, having previously asserted that they were constructively dismissed).
provided clarity for the employee, to assist them in claiming the moral high ground.
created a deterrent effect by demonstrating that malicious complaints by managers not high enough in the food chain to generate such a report can cause inconvenience to their employer long after the target has left it.
As to how all that correspondence affects the reputation of the employer, including the junior manager’s relationship with their own manager – that doesn’t concern us. In this process, our clients are not looking for compensation for the reputation theft they believe they have suffered. They’re investing in reputation management and restoration, and we should do the best we can for them.
If your client has just lost their job and is suffering financial hardship, you may have to agree to let them pay their fees over several months. It’s best to assume these costs are not recoverable from the employer.
However, your client has nothing to lose in attempting to recover their costs from the employer, or the former colleague responsible for the blacklisting.
Sometimes the client will know exactly who maliciously blacklisted them, and there is the option of bringing a defamation claim against that individual in the High Court. If it's unclear who the blacklister was, the employer has the opportunity to reimburse your client's costs as a goodwill gesture, usually without binding itself to a NDA/settlement agreement. If an internal investigation finds that "off the reservation" activity caused the blacklisting and that the blacklisting was unwarranted, the employer should be empowered to facilitate a mediation with the individual(s) concerned so that they have the opportunity to settle out of their own pocket, learn from their mistakes, and move on.
Care should be taken to avoid the perception that a withdrawn WAMS report might trigger a grievance, and a claim for hurt and humiliation, plus costs. The practitioner should assure the employer, where possible, that the scope of their work is limited to restoring the employee's standing as a public servant, office politics notwithstanding.
Do not contact
Along with the practitioner's usual request that all communications regarding the employee should be through the practitioner, ie: not with the employee directly, the practitioner should also consider the situation where a manager involved in the WAMS report, who has been embarrassed or inconvenienced by the ex-employee's challenge of that report, is tempted to interfere with the ex-employee's subsequent employment relationship. The practitioner should warn the employer that such contact could be a privacy breach as NZCU Baywide discovered in 2015 (and we suspect has happened with my client, but can't prove it). It would also be a good idea to insist that the employer refrains from contacting the employee's regulatory body, if any, on the additional grounds that the employer's finding of serious misconduct is disputed.