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:
- 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.
- 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.
- 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.
- 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.
- The behaviour called into question by the NZNO Board has notbeen proved to be misconduct. An investigation undertaken by employment lawyer Steph Dhyrberg noted:
- 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.
- 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’
- 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.
- 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.
- 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.
- 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:
- There have been inappropriate communications from NZNO staff that do not appear to led to disciplinary action. For example
- 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.
- 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.
- 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
- 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.
- 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.
- A seemingly immediately sinister interpretation of the text and the retrospective gathering of other (contested) examples of behaviour to support that sinister interpretation.
- 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.
- 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.
- 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
- 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.
- 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
- 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.
- 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.
- 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.
- 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.
- 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.
- 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
- 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.
- 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.
- 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.