In a country where workplace bullying rates remain stubbornly high, public servants are faced with a new hazard to navigate – Workforce Assurance Model Standards (WAMS), an anti-corruption initiative under the Public Service Act 2020 that is unfortunately being weaponised against targets of bullying starting with malicious complaints, and using internal processes to make binding declarations of serious misconduct.
MBIE defines serious misconduct as “hav[ing] the effect of destroying or undermining the relationship of trust and confidence between an employee and employer”. Examples include the obvious:
- Fraud
- Assault
- Sexual harassment (depending on degree)
- Being involved in an undisclosed conflict of interest
Regrettably, depending on the workplace, it could also include:
- Undermining a manager by daring to complain about them, eg: bullying
- Making a protected disclosure either to the wrong manager, or without jumping through all of the required hoops.
In the public sector, a finding of serious misconduct usually triggers the WAMS protocol where that finding has to be notified to prospective employers of the employee concerned, for three years. Unless the next employer is desperate, that usually exiles the target from the public service, which could be devastating as many public servants have skill sets that are not suited to the private sector.
Resigning on the eve of a disciplinary meeting will not prevent the disciplinary action from continuing in absentia. The employer can assert that had the employee not resigned, they would have been dismissed, and use that as a legal basis for triggering the WAMS protocol, often out of spite.
Employees who don’t want to raise a personal grievance claim should seek legal advice anyway, as below:
Employment law practitioners can assist:
Research on malicious use of the WAMS protocol is still in its infancy, but we believe that it’s best not to raise a personal grievance claim in the ERA. The vast majority of claims are referred to MBIE’s Mediation Service, where more than 90% of disputes settle, usually with a non-disparagement clause that would be useless to the employee because any blacklisting that’s already happened is irreversible. Worse than that, any payout would be tied to a clause requiring the employee not to disparage the employer, including named former colleagues. The employee would be selling their rights to free expression, probably for peanuts.
We see three new functions for an employment lawyer or advocate in circumstances where a public servant resigns in the midst of dubious disciplinary action.
With the aim of preserving the employee’s reputation, seek written confirmation from the employer that there will be no finding of serious misconduct.
Warn the employer of the consequences of maliciously interfering with the departing employee’s relationship with their regulatory body, if any.
If this is not possible, compile evidence in support of the employee’s assertion that they were constructively dismissed, without committing to raising a personal grievance claim.
Why is the right of free expression so valuable to a blacklisted employee? Because the employee needs to be able to speak freely to a prospective employer about why the previous employment relationship ended, without fear of having a non-disparagement agreement enforced!
Blacklisting reversal
I recently had a client whose workplace, based on correspondence I’ve seen, must have been highly toxic. She was a nurse at a prison. She resigned to avoid dismissal, and was blacklisted under the WAMS protocol. We wrote to Department of Corrections, asserting that her employment had ended by way of constructive dismissal and that an internal finding of serious misconduct was inappropriate, not to mention malicious (based partly on a previous threat to blacklist her a few months earlier).
The following day, Corrections retaliated by sending a similar report to the nurse’s regulatory body, the Nursing Council.
I then wrote to the Nursing Council, drawing its attention to the malicious conduct of at least two individuals my client had previously reported to.
We understand that the Nursing Council still has a statutory obligation to run a competency assessment, and it was mutually agreed that a NZNO representative should take over the advocacy role during this assessment process. But it is possible that my correspondence has prompted the Nursing Council (and Public Service Commission) to treat with suspicion any reports from Corrections, and two named prison sites in particular. Whether the nurse’s two former managers’ relationships with Corrections have been impacted is between them and Corrections.
Advocacy in this emerging area of employment law would take place on the assumption that the employee will need to set aside a modest amount of money to instruct a lawyer or advocate to correspond with their (former) employer, and possibly regulatory bodies, without the possibility of recovering the cost from the employer.
Why should practitioners bother?
These are small jobs, but very important to your client. A scary letter on your practice’s letterhead would be more effective than an email from an employee who doesn’t really know how to articulate the issue. Getting a WAMS report annulled or discredited, and/or enabling your client to demonstrate to future hiring managers that a robust effort to resolve an issue was made without exposing the employer to a personal grievance claim (even if constructive dismissal was asserted) should assist greatly.
Summary
There is not much “employment law” in blacklister-busting. There are just two legal aspects:
Claiming constructive dismissal within 90 days is the basis for demanding withdrawal of the employer’s assertions of serious misconduct. It also serves another purpose – warning that a claim against the employee for a breach of some obscure clause in their employment agreement could trigger a counterclaim for constructive dismissal that would not have otherwise seen the light of day!
Keeping the employee out of mediation, as a mutual non-disparagement agreement under s 149 would be useless to the employee as previously mentioned, and should be out of reach to the employer for the same reason.
Petty office politics that escalate to PIPs is impacting public servants’ ability to provide for their whanau. What may deter blacklisting is the prospect of a legally advised “loose cannon” who won’t be contractually gagged.
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