Providing maternal and child care with scarce resources

Reports from the GNU meeting by NZNO president Grant Brookes

Delegates to the Global Nurses United (GNU) meeting in the Dominican Republic visited San Lorenzo De Los Mina, a hospital in a deprived suburb of the capital, Santo Domingo. There we talked with nursing and medical staff. 

Established in 1974, San Lorenzo provides advanced maternity and child health care through a range of secondary and tertiary services, with limited limited financial and human resources. 

The hospital specialises in the treatment of foetal alcohol spectrum disorder and maternal HIV transmission. Nurse-led programmes include post-discharge follow-up care for teenage mothers. 

The Dominican Republic is an indebted, middle-income country with a population of 10 million and a two tier, public/private health system. 

Last year, the government spent 2.2 percent of gross domestic product (GDP) on debt repayments and just 1.8 percent of GDP on public health services. There are only three nurses per 10,000 population, compared with more than a hundred for every 10,000 people in New Zealand. 

The Dominican nurses union, which hosted the GNU meeting, is campaigning to raise health spending to five percent of GDP. 

Despite the scarce health resources, the Republic’s public hospitals also provide healthcare to people visiting from its more impoverished neighbour, Haiti. 

First published in Kai Tiaki Nursing New Zealand, September 2019. Reposted with permission. 

Related coverage:

‘Building global ties’

‘Nurse/patient ratios under the spotlight at GNU’

Nurse/patient ratios under the spotlight at GNU

Reports from the GNU meeting by NZNO president Grant Brookes

Campaigns for minimum, mandated nurse-to-patient ratios were a key focus at July’s Global Nurses United meeting. 

Encouraging progress was reported in Canadian provinces and in central and eastern parts of the United States. 

California Nurses Association president Malinda Markowitz, who also conveyed a message on behalf of the Queensland Nurses and Midwives Union, explained that California is currently the only American state with legislated staffing ratios in its hospitals. 

“These vary by unit from 1:2 in ICU to 1:5 in med/surg wards. Violations are subject to civil penalties. 

“The ratio is the minimum. There must be improved staffing based on patient acuity. 

“The road to victory wasn’t easy”, she said. “Nurses organised rallies, protests and flexed their political muscle. One of the largest studies on nurse:patient ratios found that if the California law was implemented nationally, it would literally save tens of thousands of lives.”

In 2016 Queensland became the second Australian state after Victoria to implement ratios. “An exciting study by researchers at Queensland University of Technology confirms what nurses know to be true – more nurses save lives, save money and improve the work life of nurses. 

“These victories add fuel to the fire in the global fight for safe staffing. Nurses united will never be defeated,” Markowitz said. 

First published in Kai Tiaki Nursing New Zealand, September 2019. Reposted with permission. 

Related coverage:

‘Building global ties’

‘Providing maternal and child care with scarce resources’


Building global ties

Reports from the GNU meeting by NZNO president Grant Brookes

Nursing union leaders from around the world came together in the Caribbean in July for the annual meeting of Global Nurses United (GNU)

Founded in 2013 by representatives of 14 nursing unions, GNU now spans 27 countries. This year’s meeting meeting, attended by representatives from 19 countries, was hosted by the Dominican National Union of Nursing Workers, with the assistance from the United States’ (US) largest union for RNs, National Nurses United (NNU). 

Hosting this year’s GNU meeting was the Dominican National Union of Nursing Workers, known by its Spanish acronym SINATRAE.

Attending on behalf of NZNO were kaiwhakahaere Kerri Nuku and I, with Te Poari member Tina Konia also attending as a self-funded observer. 

Addressing the opening ceremony, NNU executive director Bonnie Castillo said that when nurses stand together in one hospital, they could hold their bosses accountable. 

‘Guardians of humanity’

National Nurses United executive director Bonnie Castillo addressed the opening ceremony, alongside SINATRAE general secretary Julio Cesar Garcia Cruceta.

“When we stand together in one city, one province or state, or one country, we can advocate for patient and nurse safety on a larger scale and with greater power. So it is incredible that nurses are building our solidarity to the highest level and strengthening our ties globally. I look around today, and I see advocates for the health and safety of everyday people. I see the guardians of humanity.”

The struggle for union rights in an age of authoritarian Right Wing government topped the meeting agenda. A spokesman for Guatemala’s National Union of Health Workers, Luis Alpirez Guzmán spoke about the international campaign to secure his release, supported by NZNO, after eleven of the union’s leaders were arrested in January. 

Filipino Nurses United general secretary Jocelyn Andamo reported that police agents had come to her offices and interrogated staff. A letter calling for an end to the attacks and signed by GNU affiliates, including NZNO, was later sent to Philippines president Rodrigo Duterte. 

But there were also success stories. Formed in 2011, India’s United Nurses Association (UNA) has now has 550,000 members. 

It has members in 23 overseas countries, including New Zealand, where they would be encouraged to join NZNO, UNA president Rince Joseph said. 

Speakers from NNU and the Canadian Federation of Nurses Unions shared their successful campaigns for stronger legal protections from workplace violence. We were all encouraged to lobby our governments to ratify and abide by the new Convention Concerning the Elimination of Violence and Harassment in the World of Work adopted by the International Labour Organisation this year. 

Other items on the agenda concerned safe staffing, universal health coverage, public health and the environment, disaster relief and retirement security. 

The environmental discussion focused on union campaigns for people’s access to clean water and to prevent and mitigate the effects of climate change. 

Underscoring our common cause, Maria Estela of Costa Rica’s National Association of Nursing Professionals spoke of the “creeping control” of water sources and the erosion of indigenous rights by multinational companies. “They’re bottling our water to sell it back to us”, she said. 

Kerri Nuku spoke on NZNO’s campaigns for health equity for Māori communities and pay equity for Māori nurses working for Māori and iwi health providers. 

NNU co-president Cathy Kennedy showed that disaster relief didn’t always happen overseas. This year, NNU members had provided humanitarian assistance to children and migrant families detained at the US-Mexico border. 

On behalf of NZNO, I thanked NNU for demonstrating the moral heart of nursing. This was also demonstrated by New Zealand nurses, along with other workers, who rallied outside the US embassy in Wellington in July, calling for an end to the inhumane treatment of children. 

The meeting concluded by passing a resolution supporting climate and immigrant justice

First published in Kai Tiaki Nursing New Zealand, September 2019. Reposted with permission.

Related coverage:

‘Nurse/patient ratios under the spotlight at GNU’

‘Providing maternal and child care with scarce resources’

‘Strength in unity, defeat in anger and division’ – Speech to NZNO AGM 2019

Korihi te manu, tākiri mai i te ata

Ka ao, ka ao, ka awatea – tīhei mauri ora! 

Ko te kupu tuatahi ka tuku ki te Kaihanga. Ko te tika kia mihi anō ki te iwi kāinga me o rātou wāhi tapu. 

E ngā mate, haere, haere, haere. Rātou te hunga mate ki a rātou. Tātou te hunga ora e huihui mai nei, tēnā tātou. 

Ko te wā mō te hui taumata o te Tōpūtanga Taphui Kaitiaki o Aotearoa, ā, ka maumahara ahau ki te whakataukī: He ora te whakapiri, he mate te whakatakariri. 

Nō reira, e rau rangatira mā, e nga manuhiri tūārangi, tēnā koutou, tēnā koutou, tēnā tātou katoa. 

======

And in English: The bird sings, the morning has dawned, the day has broken. Behold, there is life! 

The first word is to the Creator. It is right also to greeting the iwi of this place and their sacred places. Greetings to those who have passed on, since we last gathered here together. 

We have mourned the passing of more great leaders from our NZNO whānau, this past year.

Two years ago, on this stage, Joy Millar accepted the NZNO Award for Services to Nursing & Midwifery.

In memoriam – Joy Millar, RN, winner of the 2016 NZNO Award for Services to Nursing/Midwifery.

It was richly deserved. Joy had trained in Auckland, where she lived most of her life, graduating from nursing school in 1968. Her dedication to nursing and her Christian faith took her to Cambodia in 1975, where she worked with refugees fleeing the war and there began her life long passion for humanitarian work. Over the next 50 plus years, she would work as a nursing volunteer in many low and middle income countries. 

Joy was last with us all, here in this room, as part of the Greater Auckland Region delegation in 2017. My condolences to GAR for your loss. 

Joy missed the 2018 AGM due to illness, but recovered in time to return one last time to her beloved Pacific. I last had the pleasure and privilege of Joy’s company at the South Pacific Nurses Forum in the Cook Islands last October. 

All those who have gone before, are with us. 

So I greet those gathered here, among the living. And as I do, I recall the whakataukī: “He ora te whakapiri, he mate te whakatakariri”. “There is strength in unity, defeat in anger and division”. 

To the leaders too many to name, and to guests from afar – greetings, greetings, greetings one and all. 

=========

We meet today under some extraordinary circumstances. 

Searching for words to say in this speech, at 5am this morning, my mind went back to my AGM speech last year

When I stood before you here, twelve months ago, memories of the DHB MECA bargaining were very fresh in our minds. I spoke from this lectern about the difficult decisions we had faced, and the differences which had emerged between members, and between members and their representatives. At times, I said, there were signs of the “anger and division” our whakataukī warns about. 

Little did I know back then that the divisions would continue, in the way that they have. 

But I also spoke of what I called the “precious treasure” of democracy. 

“It’s this democracy” I said, “that has the power to forge unity, out of division. A democratic vote can resolve many individual differences into one collective union decision. As we continue the democratic process of overcoming differences, strength will grow; “he ora te whakapiri”.”

And through testing times over the last 12 months we have now relied upon this precious treasure to elect a new Board, decide on remits and confirm the presidency of NZNO. Shortly, we will vote also on the Board’s strategy and policy decisions from 2018/19 and on next year’s NZNO membership fee.

But as I also pointed out last year, healthy democracy is more than simply majority rule. 

Last month, a hard-hitting report was released on the 2017/18 DHB MECA bargaining and campaign. I believe it affirms the experiences and concerns of thousands of NZNO members. 

The report contains fifteen recommendations – number one being, “That the NZNO invest in an internal reconciliation and dialogue process”. That recommendation is limited to the “paid workforce”, which of the Board members would only include the Kaiwhakahaere and myself. An immediate priority for me will be speaking with the new Board about an internal reconciliation process for all eleven of us. 

For you AGM and Conference delegates, meanwhile, this gathering is opportunity to listen to each other, to debate and resolve those differences and to come together again around new shared perspectives. 

Our gathering also provides opportunities to reaffirm our Mission, under which NZNO embraces te Tiriti o Waitangi and works to improve the health status of all peoples of Aotearoa New Zealand. 

And tomorrow, Conference presentations will help us raise our sights and embrace the vision: ‘Leaving No One Behind – Health For All’.

Lastly our gathering will enable us to share food and celebrate the achievements of our nursing leaders who have given outstanding service.

I hope you will leave this event re-energised to embrace the challenges of the year ahead. I look forward to meeting and mixing with as many of you as possible over our two days together.

In conclusion, it occurs to me that NZNO turns 110 this year. Throughout this past 110 years, our organisation has undergone much dynamic change. We’ve transformed from a small group vehemently opposed to advocacy on pay, to over 50,000 members prepared to take to the streets to secure an environment where good health can thrive. 

The journey has not always been easy. The past year has been a tough one for our 110-year old organisation. 

But we have worked through our differences before. We have innovated, adapted, and made significant changes to be where we are today. 

The next chapter is ours to write together. 

Nō reira e te whānau, tēnā koutou, tēnā koutou, tēnā tātou katoa.

‘Fairness and justice for the good of the organisation’ – Speech to 2019 NZNO SGM

E ngā mana, e ngā reo, e ngā kārangarangatanga maha, tēnā koutou. To you the authorities, the voices and the many connections, greetings. 

Kia tau te rangimārie ki runga i a tātou. Peace be upon us all. 

I want to start by asking of you all, ‘where do you want NZNO to be in two years time? What is your vision for this organisation we pour our heart and soul into?’

That vision you just built, those hopes and aspirations for NZNO, are what connects all of us in this room. 

And underpinning this vision are our shared values of fairness and justice, and our belief in transformation through unity and collectivity. 

In the short time I have today, I’ll share why I believe the only way to achieve our future vision for NZNO is to honour these values today.

Let’s start with fairness and justice.

We’re here to decide on a resolution, moved by the outgoing Board, that I should be removed as President for misconduct. 

The motion is reliant upon Schedule Six of the NZNO Constitution. The wording in that Schedule goes back – virtually unchanged – at least to the birth of NZNO in 1993. 

What were our forebears thinking back then, when they drafted it? What guidance might we take from the wisdom of our nursing tūpuna? 

There are clues in the surrounding text. Schedule Six says: 

“Position holders may at any time be removed from office… by reason of:

  • inability to perform the requirements of the position; or
  • bankruptcy; or
  • neglect of duty; or
  • misconduct; or
  • misappropriation of NZNO funds or property.”

I ask you to consider, first of all, whether using these rules in the current circumstances honours the intent of our forebears? Is this a fair and just use of the rules? 

Let us now look to the grounds for removal offered by the Board and test these for fairness and justice. 

In my view, there’s only one actual misdemeanour in the whole of their thirty pages. 

On 3 July 2018, I sent a Facebook message to an NZNO Senior Manager who I’d been assigned to work with on the DHB MECA campaign. NZNO has confirmed to Radio New Zealand that this person was Industrial Services Manager Cee Payne. 

My message was inappropriate. I know that it caused distress. I take ownership of the fact I made a mistake. 

For a variety of reasons, between then and now I’ve been prevented from making an apology for my mistake. The NZNO Chief Executive wrote a memorandum to the Board the day after the message which acknowledges that he prevented me from apologising that day. You can see that Memorandum on pages 45-48 of my statement

Cee Payne is not here today, so I can’t apologise to her directly. But I’d like to make a public apology, reading from a letter to her which I wrote and gave to the Board on 17 December last year. Sadly, this letter was never delivered.

“Tēnā koe Cee,

On the morning 2 July 2018 you visited me in my office. The words exchanged with you caused visible distress. 

The following day you received from me a communication sent via Facebook Messenger. I acknowledge that this message was inappropriate. 

I apologise unreservedly for the upset I caused for you on both occasions. 

My deep appreciation of your contribution to NZNO, which I have expressed consistently to yourself and to others, continues undimmed. 

I genuinely welcome the opportunity to work with you to rebuild our professional relationship.

Nāku noa nā

Grant Brookes”

The Board paints me as unrepentant. They deny that I have tried to apologise. As I hope this letter from last December and my apology today shows, nothing could be further from the truth. 

I would now like to hand a signed copy of this letter to the Board, once again, hopeful that this time it might be delivered.

You have heard me acknowledge my mistake. 

But what you haven’t heard – and won’t hear about today – are very similar mistakes made by other Board members over the last 12 months. Some of those people asking you to remove me from office have been the subject of complaints themselves about inappropriate messaging via Facebook – multiple complaints, in some cases. 

This should not be surprising. How many of us in the room today have never been the subject of a complaint, during our nursing career? 

We all make mistakes. The question is, what should be done about them? Should our mistakes be used as an opportunity to inflict the maximum punishment?

Is that who we are, as nurses – caring professionals? 

As unionists? 

Is that the kind of disciplinary process we support in our own workplaces? 

No! We can’t abandon fairness without changing who we are and what we stand for. 

The remaining allegations in the Board’s 30-page dossier are either false, trivial or worse. 

It is alleged, for instance, that I am guilty of “unprofessional conduct towards a senior member of staff”, by sending two emails which were “patronising”, “demeaning” and “unacceptable”, or “unjustifiably critical”. I include those emails, on pages 42 and 43. I’ll read one of them, sent on 21 July 2018:

“Kia ora koutou,

At the Leadership Team meeting on Monday, I provided grounds for believing that a breach of Board confidentiality occurred during the teleconference held on Wednesday 11 July, attended by ten Board members. It was agreed that more information should be gathered in the first instance by [name].

I have not received confirmation that this has been done. In addition, I am aware that [name] is now on leave until 30 July.

As Board Co-Chair, I share responsibility for ensuring implementation of processes that result in Board effectiveness, which naturally include maintenance of confidentiality. Owing to the apparent delay in acting and the lack of clarity around timeframes, therefore, I am obliged to bring this to the Board now, for your attention.

The LT meeting minute is self-explanatory:

Regards

Grant”

The fact that the Board references this email as grounds to remove me from office is beyond trivial. It is bizarre – so bizarre that it’s actually incomprehensible, unless seen in the context of what else has been going on inside NZNO. 

An honest and full account of that is contained in Ross Wilson’s MECA report. He observes that:

“The pressure which came onto the organization and individuals during this time was intense and, at times, almost overwhelming.”

He adds: “The pressures had consequences in strained relationships between key individuals and groups within the organisation which have not yet been adequately addressed.”

Evidence of strained and fractured relationships within NZNO is everywhere.

Three days from now, on Thursday, NZNO Senior Managers will appear as defendants in the Employment Relations Authority in Tauranga to account for a complete relationship breakdown between themselves and NZNO staff in the Tauranga office.

Three weeks ago, the anonymous Florence Smith posted on Facebook a complaint letter sent to Cee Payne and NZNO HR during the MECA negotiations, signed by “multiple NZNO frontline staff”. In it, organisers expressed concern about NZNO senior staff’s inability to listen to either organisers or members. 

Radio New Zealand concluded from the MECA report that NZNO suffered “deep divisions, including a loss of faith and trust, by nurses in their union during contentious pay talks last year.”

As a result, dissatisfied members have been leaving to join the newly established alternative to our nurses’ union.

NZNO membership numbers have fallen by 1,766 between September 2018 and last Friday. That will shave the better part of a million dollars off NZNO’s bottom line. Going forward, it’s likely to mean fewer services and less support for members like you.

Fundamental relationship strain, at times pushed to breaking point, is the systemic issue underlying this Special General Meeting.

Removing me from office will not heal these deep divisions, nor rebuild trust and confidence from our membership. I shudder to think what it would do to our bicultural relationships. 

It’s been inferred today that I must be removed for the good of NZNO. Removing me will in fact make things much worse. 

If today, this SGM overrides the democratic will of the members to have me as their president, it will be taking us further down the path of division and breakdown, just as we’re heading into DHB MECA bargaining once more. 

But we have an alternative. We can instead acknowledge where our organisation has come from, and have confidence that with our shared values and our belief in the transformative power of collectivity and unity we can and will build the NZNO we together envision. 

Our shared values are such a strong foundation to move forward with. I leave you all – especially you Kerri, the Kaiwhakahaere I have worked with so closely for so long – with my personal commitment. My personal pledge is to move forward, looking to build unity and collectivity, to advance fairness and justice.

Nō reira, tēnā koutou, tēnā koutou, tēnā koutou katoa.

The President comments: ‘We will overcome’

According to my research, the upcoming 2019 Annual General Meeting in Wellington should mark the longest period of continuous service by an NZNO president in our 110-year history. I will have served four years and a day. 

Past presidents have won an equal, or greater number of elections. But through the quirks of history, either they weren’t consecutive, or they were at a time when presidential terms were two years, rather than three years as they are today. 

Throughout this past 110 years, NZNO has undergone much dynamic change. We’ve transformed from a small group vehemently opposed to advocacy on pay, to over 50,000 members prepared to take to the streets to secure an environment where good health can thrive. 

NZNO has embraced change throughout its history. Members voted to strike in 1985, only to have it called off. Four years later, Auckland nurses Jenny Landsbergen, Lucien Cronin and Gordon Love took to the streets in our first ever nationwide industrial action.

The four years of my presidency has been a story of working together towards positive, member-led change. We have gained momentum in collectively shifting the ethos of our organisation. We are insisting that our organisation is led by us, the members. 

The changes started small. In 2015, delegates at the NZNO AGM directed NZNO to act in accordance with member values. They voted that we should divest from fossil fuels, become a Living Wage employer and expand our global connectedness with other nursing unions

Within a year, the last of these three was complete. We had joined with our sister unions in Global Nurses United, who are now leading the worldwide fight for safe nurse:patient ratios

The changes grew through members’ growing insistence that we would lead our organisation’s direction. As 2017 rolled into 2018, members in the DHBs stood up and took unprecedented actions for themselves, for communities reliant on our over-stretched health system and for a union that represents us all. 

As I wrote in this column a year ago, about the DHB strike of July 2018, “For me personally, the hours I spent picketing and marching with my fellow NZNO members that day will stand as the proudest moments of my nursing career”. 

And finally, now nearly every important NZNO decision belongs to all members with one member one vote

The four-year journey has not been easy. At times, there has been rancour and bitter division. 

But we have worked through our differences before. We have innovated, adapted, and made significant changes to be where we are today. Had our organisation not been prepared to embrace change we would still be campaigning against penal rates, and standing against the 40-hour working week! 

Last month, a hard-hitting report was released on the 2017/18 DHB MECA bargaining and campaign. I believe it affirms the experiences and concerns of thousands of NZNO members. The very existence of this report, I ascribe to member pressure, in particular to the proposals put forward at last year’s AGM by the NZNO Greater Auckland Regional Council

Today, there is a last stand of resistance to member-led change in NZNO. But we will overcome because over the four years we have organised ourselves to insist our member voice will be heard and acted upon. 

This year’s AGM will see a new Board take office, elected by the entire NZNO membership. The new Board will have to ensure that all recommendations of the MECA review are implemented, that a new NZNO Strategic Plan for 2020-25 is put in place and that our structures are up to the challenges the future will throw at us. I look forward to working with your newly elected Board to ensure this happens. 

The last four years have been important ones for our 110-year old organisation. The next chapter is ours to write together.

First published in Kai Tiaki Nursing New Zealand, September 2019

Letter from a nurse and lawyer

Below is a copy of a letter from an NZNO member which was sent last week to the Chairs of an NZNO College and a Regional Council. The author, who is dually qualified as a Registered Nurse and lawyer, has agreed for it to be published here anonymously, saying: “I’d really happy if it helps get an understanding out there of the issues that we are really dealing with.”

RE: THE MOTION TO REMOVE GRANT BROOKES AS PRESIDENT OF NZNO

This is NOT a legal opinion.

The below is a summary of my thoughts regarding the motion to remove Grant Brookes as president of NZNO.

I wrote it to help me process and to clarify for myself what the issues are and then to put them forward to my Regional Council and professional college with my request that they vote NO to the motion.

I have been asked if my summary can be shared with others and I am happy to allow that on the understanding that it represents my own analysis and thoughts and was shared in the first place for the specific purpose of supporting my own position to the groups within NZNO that I am entitled to submit to.

I do have legal training, (am also a nurse) and that was useful to me in trying to analyse the complex and somewhat confusing material that I waded through. My conclsuion is that the correct response to the motion to remove the President is tovote NO.

However, I am not a specialist employment lawyer, have not had the benefit of time the time it takes to conduct comprehensive legal research and analysis of the matter and want to make it clear my summary belowdoes not in anyway constitute a legal opinion on the matter. 

In support of my conclusion I make the following points:

Process

  1. Notwithstanding that the process that is being followed might be allowable under the Rules of the NZNO constitution (that is by no means settled) NZNO is not above the law. Any process followed to evaluate the behaviour and decide on an outcome, and any actions taken must be consistent with New Zealand law, not only because of the very serious financial and reputational risks to the organisation if that is not done, but most importantly because that is the right thing to do.
  1. While the employment status of the President (e.g., employee/ self-employed/ elected official etc) is not clear the matter has been managed so far as if there is an employer/ employee relationship. Therefore fundamental employment principles should apply. 
  1. Most relevant are the requirements to: 
  • deal with employees in good faith, 
  • be fair and reasonable 
  • use a fair process to investigate misconduct and 
  • only impose an outcome that is proportionate to the misconduct. 

Disregard of these (already there are instances) can give rise to legal action for a breach of procedural fairness or a breach of substantive fairness. That would be costly to NZNO in more than financial terms.

  1. Procedural fairness includes that an investigation must be based on the principles of ‘natural justice’ including a presumption of innocence, fair consideration of the facts within their context, being listened to with an open mind and a lack of predetermination of the outcome. I do not believe natural justice has been a feature of this process.

Behaviour

  1. The behaviour called into question by the NZNO Board has notbeen proved to be misconduct. An investigation undertaken by employment lawyer Steph Dhyrberg noted: 
  1. the text that the President had sent was ‘ambiguous’. The text could equally be interpreted as conciliatory (that was my interpretation as it references forgiveness and says ‘we need you back’), or interpreted as non-sensical. Nonetheless, although his behaviour in sending the text has been acknowledged as inappropriate by the President he was discouraged/ prevented from apologising.
  2. that the President had been drinking at the time he sent the text is quite rightly regarded as ‘irrelevant’. It is disappointing then that it is raised, remarked on several times and later construed – with no further evidence – that he was a ‘heavy drinker’ 
  3. that the intent of the conversation the day before the text was sent was also ambiguous. Talk about there being a crisis and needing/ having a plan are not outrageous in the context of the situation. Indeed a review of the MECA negotiation process has criticised that there was a lack of a plan. The sinister interpretation that has been retrospectively overlaid onto the President’s remarks in order to justify a threatening interpretation of the text is purely speculative. 
  4. Other behaviour such as speaking at the rally, sending an email to a senior staff member that was considered patronising, looking dishevelled, and drinking in his own time are not behaviours that could, in a fair and reasonable enquiry, be considered misconduct. It is not fair or reasonable that these matters, apparently not raised at any level other than being remarked on, are now included to add gravity to the behaviour that is being investigated. 
  1. In any case, evidence put forward by the complainant against the President may be unreliable. For example, during the investigation by Steph Dhyrberg the complainant claimed that the text she received was an ‘out of the blue’ communication and that she and the President were not in regular communication. The Dhyrberg report makes much of this to support an interpretation of the message as a ‘threat’ to the complainant. Yet the President has approximately three years of text communications on his phone between himself and the complainant that evidence the existence of a different relationship than what has been suggested – one that seems collegial, friendly, professional and respectful. Of course, in the absence of a proper forensic examination of their communication, or at least sworn affadavits it is not possible to judge whose evidence is the most reliable. But it is not right and certainly not consistent with the principles of natural justice to merely accept the complainant’s statements as being more trustworthy than the President. 

Inconsistent Treatment

  1. The standard against which the President’s behaviour has been judged is inconsistent with that being used to judge others’ similar behaviour and the outcomes being considered for the President are significantly more serious than being considered for others. For example:
  1. There have been inappropriate communications from NZNO staff that do not appear to led to disciplinary action. For example
    1. NZNO staff actively challenging nurses on Facebook during MECA negotiations, without identifying themselves, to an extent that was intimidating. We are not aware of disciplinary consequences that resulted from these matters.
    2. NZNO staff were very recently making inappropriate comments on Facebook to the extent that it is known they were requested to cease doing so by the CEO. This has been intimidating to NZNO members who are entitled to engage in debate about matters that concern them. As recently as Friday the moderators of one group were compelled to request that NZNO board members and employees desist from trying to join the group. We are not aware of any disciplinary consequences that resulted from these matters. 
  2. Steph Dhyrberg herself was recently the author of an offensive Twitter communication for which she was compelled to publicly apologise (reference Newshub article 28/01/2019 “Wellingtonian of the Year Apologises Over ‘Whores’ Tweets”) The content of the tweet concerned was substantially more damaging to many more people than the text sent by the President to the complainant. Yet (quite rightly) she was able to withdraw her statements and apologise. It is somewhat ironic then that she has been selected to investigate the significantly less miscreant text that the President sent to the complainant. 

It is a common basis for successful legal challenge in the employment courts that an employee has been treated in a manner that is inconsistent with the way others have been treated. 

Acting in Good Faith

  1. There have been likely breaches by NZNO of the ‘good faith’ obligations that are incumbent on parties in an employment relationship and on employers in an employment investigation. 

Notably: 

  1. The immediacy with which the complainant’s perception of threat from the text sent by the President was concurred with notwithstanding the alternative narrative that the complainant’s pivotal role in the MECA negotiations, the protracted negotiating process, the widely expressed frustration and disappointment of the members with the progress of the negotiations and the personal villification of the complainant on social media had greatly increased the possibility of her perceiving threat in the situation. 
  2. A seemingly immediately sinister interpretation of the text and the retrospective gathering of other (contested) examples of behaviour to support that sinister interpretation. 
  3. The reported lack of support by the CEO for a more conciliatory response from the outset evidenced by the CEOs immediate dismissal of the suggestion of an apology and the blocking of subsequent attempts by the President to apologise.
  4. The wide release (to all members and others who could easily access it without logging in as a member to the NZNO website) of personal information about the President beyond what is necessary for those who are to vote to assess the behaviour that is under question of misconduct.
  5. The unsubstantiated labelling of the President’s alcohol consumption as ‘heavy drinking’ – where that is not supported, has not been suggested or raised in any other context as a matter of concern, and is not relevant to the current enquiry, but nonetheless is damaging to the President as it encourages the perception that he may in fact be a heavy drinker which could diminish his standing among other staff and the members of the NZNO and may influence their voting in the motion to remove him.

Outcome and Consequences

  1. While we have been encouraged to focus on the behaviour of the President, I believe it is important to consider the proposed consequences of proceeding with the removal of the President at the Special General Meeting. This is the matter that carries significant legal, financial and reputational risks for our organisation. 

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  1. It is important to note that Steph Dhyrberg places a very clear limit on her retainer of investigation of misconduct. She specifically declines to recommend whether removal is appropriate 
  1. Although the NZNO constitution allows removal for misconduct, that is not defined in the Constitution. Employment law requires that a disciplinary outcome is not disproportionate to the misconduct it addresses and dismissal typically follows a finding of serious misconduct. Removal from his position would be an excessive consequence for the behaviour of the President. 

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  1. As well as the injustice to the President of doing so, imposing a disproportionate outcome exposes the organisation to the risk of a legal action for substantive breach of employment law.

Membership

  1. Furthermore, removal of the President has the potential to cause significant harm to the organisation and relationships with the rank and file members. It is no secret that the regard with which many members hold the union is currently at a very low level . Many members feel that their voices are not being listened to, that they are powerless to effect any change in the organisation and that they are disenfranchised. 
  1. Removal of the elected President for behaviours that have largely been seen as arising from his commitment to give the membership a voice has been construed by many as an attempt to silence the members, to shut down criticism, cut off communication and further distance the members from the power base of the organisation.
  1. Furthermore, to remove the elected President with no clear mandate from the members (e.g., by member-wide ballot), is not only wrong in principle but sadly confirms to the members the significant disconnect between themselves as members and the executive and employed staff of the NZNO.
  1. Finally, it is widely considered rather disingenuous for the Board of Directors to engage in a process on their last day in office that removes the elected president without a clear mandate from the membership and leave the incoming Board to manage the resultant consequences 

Bullying

  1. I am aware (as it has been expressed at the Regional Meeting I attended and it is evident on social media) that NZNO employed staff have been feeling criticised and bullied. I acknowledge there is a reasonable basis to that, at least an impression of it on social media. While I wholeheartedly agree a strong stand needs to be taken on bullying and staff need support to manage it, I would be very disappointed if this enquiry into the Presidents alleged misconduct was construed in such a way as to be used to try to promote that the organisation is addressing bullying. 
  1. On the other hand, this process surely represents an opportunity NZNO could embrace to address a perceived culture of division, bullying and negativity with a more open, compassionate and restorative process. In my opinion, expert consultation on those matters would be a more profitable use of the union’s funds than continued litigation. 

Summary

  1. In summary I am left with a strong sense that the process being undertaken is wrong. The investigation of the President’s alleged misconduct has been unfair and the outcome proposed is quite extreme..It has not been shown in a fair and reasonable investigation that his behaviour amounts to misconduct and even if it had been the proposed outcome of removal from his Position is a disproportionate consequence that is entirely morally and legally unjustifiable. The proposed motion should be voted down as it is just not right but also because in proceeding there are significant legal, financial and reputational risks to the union.