Reinstatement to the role was once always available as a remedy for a personal grievance claim involving dismissal. This is no longer the case. Changes to the Employment Relations Act 2000 (Act) have meant that an employee can’t be reinstated if their own behaviour contributed to the situation giving rise to their personal grievance.
While the case waits to be decided, employees can ask to be temporarily reinstated into their role. The Employment Relations Authority (Authority) then has to consider whether reinstatement is available given the employee’s alleged contribution to the situation.
The Authority’s approach to this situation has varied so far, reflecting the unique facts of each case. Two recent examples are illustrated below.
Williamson v Health New Zealand Te Whatu Ora – interim reinstatement declined
Dr Williamson was an anaesthetist who was dismissed for serious misconduct after breaching patient privacy by accessing and viewing personal files. The Authority declined her application for interim reinstatement. It was declined because it was strongly arguable that contribution under section 123C would be established at the substantive hearing. Therefore, her case for permanent reinstatement was weak.
This finding was closely tied to the culpability and blameworthiness of Dr Williamson’s conduct. Particularly relevant was her admission that she had breached relevant professional standards and codes.
Vaasaoasaoa v Civic Waste Ltd – interim reinstatement allowed
By contrast, Mr Mulinuu (formal last name ‘Vaasaoasao’) was a Health and Safety Advisor who, while on annual leave, received an email from a branch manager. The manager was seeking guidance from Mr Mulinuu about crane work and safety documentation for chainsaw work. After returning from leave, the email became buried among other work demands and Mr Mulinuu did not respond to it. Several months later, a worker within the company suffered a serious injury while undertaking chainsaw work at height. In the subsequent investigation, the employer said that Mr Mulinuu’s failure to respond had resulted in a loss of trust and confidence in his ability to reliably perform the role. He was summarily dismissed for serious misconduct.
The Authority said:
“[It] is not automatic [that sections 123B and 123C of the Act could apply]. The relevant questions are whether the omission, viewed in its full factual and organisational context, amounted to serious misconduct and whether it was conduct of the kind and causal significance required by s 123C of the Act. Those matters remain disputed.”
In other words, the Authority found that it was yet to be decided whether Mr Mulinuu’s oversight amounted to serious misconduct or was blameworthy enough to preclude reinstatement. It considered permanent reinstatement remained a possible remedy and therefore interim reinstatement was appropriate to be granted.
Where does this leave us?
The Authority is unlikely to decline an application for interim reinstatement, solely based on section 123B or 123C of the Act, if:
- the employee disputes contribution; or
- relevant evidence is untested and/or the level of culpability remains in question.
This means that, while the law has changed, interim reinstatement is still a viable option, even in a case involving alleged contributory conduct.
If you have questions about an application for interim reinstatement, or defending one, contact our Employment Law team today.
