19 July 2007

The public service, relationships, and political neutrality

> TV3: "Claims MP fired woman because of partner’s political job" > DomPost: "Partner of National aide loses ministry job" This one has been floating around for a while, and once against got some press from TV3 last night. A lot of the coverage has focused on alleged Ministerial involvement. In many respects, that's the least interesting element. If there has been Ministerial interference, that would be unlawful under s 33 of the State Sector Act 1988:
Duty to act independently Notwithstanding anything in section 32 of this Act, but subject to sections 51 and 52 of this Act, in matters relating to decisions on individual employees (whether matters relating to the appointment, promotion, demotion, transfer, disciplining, or the cessation of the employment of any employee, or other matters), the chief executive of a Department shall not be responsible to the appropriate Minister but shall act independently.
In my view, though, the more interesting question is whether a refusal to employ or termination of employment would be unlawful, assuming that decision was properly made by the CEO. Obviously, such action would prima facie amount to discrimination based on "family status", that is, "being married to, or being in a civil union or de facto relationship with, a particular person" (s23(1)(l)(iii), Human Rights Act 1993). That potentially makes the action unlawful under s22 of the Human Rights Act and/or s19 of the New Zealand Bill of Rights Act 1990. However, as one of my colleagues pointed out to me, section 32 of the Human Rights Act expressly allows discrimination against people in relationships if there is a risk of collusion:

Exception in relation to family status Nothing in section 22 of this Act shall prevent restrictions imposed by an employer— (a) On the employment of any person who is married to, or in a civil union or in a de facto relationship with, or who is a relative of, another employee if— (i) There would be a reporting relationship between them; or (ii) There is a risk of collusion between them to the detriment of the employer; or (b) On the employment of any person who is married to, or in a civil union or in a de facto relationship with, or who is a relative of, an employee of another employer if there is a risk of collusion between them to the detriment of that person's employer.

The concerns underlying this exception would no doubt also provide the foundation for an argument that any discrimination is justified under the Bill of Rights (either within the definition of discrimination itself or for the purposes of section 5). This would be augmented by the requirement of political neutrality under the New Zealand Public Service Code of Conduct. Of course, it must be established - factually - that the relationship creates a risk of collusion to the detriment of the employer. But that seems readily open in this situation. On its face, therefore, the action taken by MfE appears to be defendable.

10 comments:

Nigel Kearney said...

If staff whose partners have National connections get sacked but staff whose partners have Labour connections don't, could that not be discrimination based on a combination of family status and political belief?

Since the public service is (in theory) neutral, the issue of collusion would be (in theory) the same regardless of the political party involved.

David Farrar said...

Dean - you have missed the rather key point that her employer hired her knowing about her relationship. There is a big difference between not hiring someone in the first place because of a relationship conflict of interest, and hiring them and a week into the job changing your mind as to whether it is a conflict.

Dean Knight said...

NK:

Good point.

However:

(a) It's impossible to ignore political affiliation under s32. The risk of collusion would only be to the detriment of the partner's employer was from a party not in government. If they were in government, then - although there might be collusion - there's no adverse impact on for the employer.

(b) But that might not be enough to answer the political belief disrimination (the exceptions are narrow and specifict). Interestingly, s31 which addresses political belief in political appointments does not apply.
One option might be to argue that it amounts to a "genuine occupational qualification" under s97(2). This "catch-all" is only available at a particular stage of the dispute resolution process, but allows for a more general consideration of the justication for discrimination (similar to the Bill of Rights section 5 analysis I think). Again, there seems to be a sound basis for the action.

Dean Knight said...

DPF:

I think that's a bit of a red-herring.

The delay suggests two possibilities:

- Ministerial interference (which, as I said, is unlawful); or
- (internal) realisation of the significance of the relationship (which is innocuous).

For the latter, under s32, termination is treated the same as non-employment - any delay in realisation would be immaterial.

Idiot/Savant said...

Of course, being legally defensible doesn't make it ethical. Or desirable.

Dean Knight said...

I/S:

No it doesn't. But, legality aside, I think the imperative being addressed is rather pressing - I'd incline to say that avoiding such relationships is proper and ethical (even if the stop-start nature of the affair was regrettable)?

Graeme Edgeler said...

This is public law - so you know you want to launch into a discussion of estoppel...

David Farrar said...

Termination is not the same as non employment. You need cause to terminate under the ERA.

Also it is a huge difference to the employee. Generally if you fail to get a job you are still in your old job. But to be told you have a job, to start work and then to be told you can't continue means you end up jobless for an unknown period of time.

And as it happens it is obvious the Minister did interfere. No Ministerial staff member would ring the CEO without approval from his boss, and the CEO made his decision after talking to the Minister

Dean Knight said...

DPF:

- If you have a look at Part 9 of the ERA, the prohibition is against unjustified dismissal or discrimination. First, dismissal due to a potentially collusive relationship is justified (or, in your terms, "cause"). Secondly, the prohibition on discrimination is subject to the same exemptions as the ERA.

- And, of course, termination soon after employment makes a practical difference for the employee. But, in law, the alleged discriminatory action is treated no differently.

- I'm genuinely um-ing and ah-ing about the recent reports of involvement from B-P's office, and am yet to form a firm view on whether it has crossed the line.

On the one hand, the phone call might been innocuous, if it simply said "Is she in a relationship with X?" or "Did you know she is in a relationship with X?". I could have done that myself without objection. If genuinely done on that basis, there's an argument it doesn't breach the requirement that the CEO act independently – if there has been no implicit pressure from the minister's office or tacit expectation of action.

On the other hand, there's a real risk that the phone call carried with it an expectation of action by the CEO that crossed the line and amounted to unlawful interference. And B-P's responses this week appear somewhat disingenuous and evasive.

I want some more information about the nature of the phone call and reactions to it!

Dean Knight said...

I should also add:

From DomPost reports this morning, the basis for the action appears to be the "perception of a conflict of interest", not actual concerns.

Although the distinction is subtle, I wonder whether this takes the MfE outside the "collusion" exemption. While "perception" may be an objective justifying discrimination under s5 of the Bill of Rights or a genuine occupation (dis)qualification under the HRA, the s32 exemption seems to require actual evidence of a risk of collusion and detriment, not simply concerns about how it would look...

Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"


This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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