Case update: Arranging meetings with employees

Employment Court: YFR v Reserve Bank of New Zealand / Te Pūtea Matua

Background

YFR, a Payments and Clearance Officer, was employed by the Reserve Bank of New Zealand (Bank) on a 10 month Fixed Term Agreement (FTA). Four weeks prior to end of the FTA, YFR applied for jobs and asked her manager and a supervisor to be referees, which was agreed to. The Bank’s policy advised that references were to be provided on a personal basis and not on behalf of the Bank.

YRF was offered a role in another company subject to satisfactory pre-employment checks including references. At the conclusion of those checks, the company withdrew its offer. YFR was surprised and upset at this, particularly when it became obvious to her that it was as a result of a negative reference check process, when she was advised by the company that she should refrain from using her manager and her supervisor as references in the future. The Court found that when her manager was asked if she would re-employ YFR, she had said she would not.

YFR then sent a number of angry Teams messages to her manager and supervisor, accusing them of “backstabbing” her and the next day she apologised for her comments, however by then and the matter had been escalated to HR with concerns over YFR’s wellbeing as well as the manager’s own wellbeing.

HR organised a 15-minute “catch up” to discuss her wellbeing, without fully clarifying the purpose of the meeting.

YFR left and later raised a personal grievance for unjustified disadvantage alleging her inability to return to the workplace and say goodbye to her colleagues caused her considerable distress.

Claims

YRF alleged three events caused her to be unjustifiably disadvantaged. The questions before the Court were whether the Bank unjustifiably disadvantaged YFR:

1. When it met with her for the “catch up” on her wellbeing?
2. By removing her access to its systems after this?
3. By failing to respond to her representative’s email seeking her return to the workplace?

Did the Bank unjustifiably disadvantage YFR by the catch up meeting?

The Court reviewed how the meeting was set up and the content of the meeting and commented that:

Nature and purpose of the meeting

• YFR was not offered a support person
• YFR was not told that the Bank was going to propose she be placed on paid leave, which was more significant than just an informal conversation to check on her wellbeing
• The email arranging the meeting was not clear that it was YFR’s wellbeing that was going to be discussed, and YFR thought it was to discuss her manager’s wellbeing.

Conduct and content of the meeting

• The Bank described the relationship between YFR and her manager as “damaged and broken”
• The meeting that was meant to be 15 minutes but went on for 45 minutes
• YFR was given two options to move forward, to be placed on paid leave for the remaining three weeks of her FTA or if she continued working, the Bank would commence a disciplinary process; and
• YFR became upset and ended the call by saying she needed to speak to her union.

The Court held, in summary, that:

• YFR was disadvantaged by how the meeting was set up and its content. Not being offered a support person was a serious flaw in its process considering YFR’s history of requiring a support person in highly stressful situations particularly due to her neurodivergent background.

• While it was open to the Bank to describe the relationship as “damaged”, it was premature and unjustified to describe it as “broken down” in the absence of any formal process. YFR feeling like she had no choice but to go on leave after the meeting was caused by the Bank’s actions that were inconsistent with its obligations of good faith including, in particular, being active and constructive in maintaining a productive employment relationship.

Did the Bank unjustifiably disadvantage YFR by removing her access to its systems?

The Bank then removed access to systems for YFR because she sent messages in the team chat saying:

1. The Bank was attempting to constructively dismiss her;
2. She was going to take the Bank “to the cleaners”; and
3. HR had bullied and intimidated her, and that she was “disgusted”.

The Court held that the Bank invited her to a meeting after to discuss the temporary suspension from services and had previously sent her a letter of expectation about appropriate online communications and not using the team chat to raise personal work concerns or potentially controversial views or feedback. As such, its actions to temporarily remove access were not unreasonable and did not disadvantage YFR.

Did the Bank unjustifiably disadvantage YFR by failing to respond to her representative’s email seeking her return to the workplace?

YFR’s lawyer then, wrote to the Bank, noting that YFR had reconsidered her position, and wanted to return to work rather than leave before her fixed term employment finished. By separate email a without prejudice proposal was made.

The Bank did not respond to the first email but responded to the second one on the assumption that the second email superseded the first one. The Court accepted this considering YFR’s lawyer did not follow up with the Bank for a response and held YFR was not disadvantaged by this action.

Remedies

• Compensation for hurt and humiliation: YFR sought $50,000 as compensation but the Court awarded $15,000, reduced by 15% for her contribution to $12,750.
• Other Claims: Claims for lost earnings of $105,000 arising from not being able to work for 18 months after termination and that YFR had to move to Australia to find work were raised. However YFR was paid until the end of her FTA and as a result did not lose wages. As such the claim for lost wages failed.

Key Takeaways for Employers

• Informal Meetings: When matters are unlikely to progress to more serious outcomes or formal measures, employers can meet with an employee to discuss any minor employment concerns for the purposes of facilitating a constructive discussion. However, employers should be consider the employee’s possible reaction or impact for them,  with the information being delivered, in deciding how best to arrange these and whether support should be allowed. Employers are expected to tailor their approach to the employee’s needs, as part of good faith duties, and this case highlights the importance of considering, for example, neurodivergence and other relevant factors for an employee.
• Sensitive Meetings: When holding sensitive meetings where there may be a need to commence a formal process or discuss potential changes to employment arrangements with employees, ensure that there is clear communication on the purpose of the meeting, and provide the option of having a support person and/or independent advice ahead of the meeting.
• Asking an employee to go on leave: Paid special leave or suspension should be proposed to the employee with sufficient time to comment and obtain advice before any arrangements are agreed to, and the lawfulness of this depends on contractual entitlements to this and the circumstances.
• Always Document: Ensure you provide your employee with clear documentation such as a meeting invitation letter, providing them sufficient information on the purpose of the meeting and what will be discussed. All meetings with employees should be documented with meeting notes to prevent any misunderstandings or confusion on what was discussed.

How can we help?

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Disclaimer: We remind you that while this article provides commentary on employment law, health and safety and immigration topics, it should not be used as a substitute for legal or professional advice for specific situations. Please seek legal advice from your lawyer for any questions specific to your workplace.