| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 101/09 |
| Hearing date | 23 Feb - 4 May 2009 (4 days) |
| Determination date | 14 July 2009 |
| Member | P Montgomery |
| Representation | M Ritchie ; H Kynaston, J Holden |
| Location | Nelson |
| Parties | Grey v Director-General of Conservation & Anor |
| Other Parties | The Solicitor General |
| Summary | UNJUSTIFIED DISMISSAL – UNJUSTIFIED DISADVANTAGE - PENALTY – Applicant claimed unjustifiably dismissed by first respondent (Director-General of Conservation) – Claimed recovery of penalties against second respondent (Solicitor-General) for allegedly inciting, instigating, aiding and/or abetting first respondent’s breach of employment agreement (“EA”) – Applicant withdrew claim against Solicitor-General - First respondent argued dismissal justified due to conflict of interest – First respondent argued verbally agreed applicant continue to work for existing clients on proviso would not undertake new work nor work conflicting with responsibilities to first respondent -– In private capacity, applicant acted for group of wool growers (“clients”) – Applicant lodged application on behalf of clients for special leave to appeal to Supreme Court, with one of claims being bias in Court of Appeal – Application joined Attorney-General (“AG”) as second respondent – Newspaper article publicised litigation – Solicitor-General advised first respondent of issue and stated view that applicant’s role in litigation conflicted with employment with first respondent – After consideration, first respondent concluded applicant had conflict of interest between role as solicitor in government department and acting for private clients bringing litigation against AG – First respondent held teleconference with applicant to seek information and advise of concerns – Applicant suggested would respond later same day – Applicant tendered resignation – First respondent declined to accept resignation and provided more time to consider position – First respondent sought confirmation of Solicitor-General’s view and independent advice from QC on conflict matter - In teleconference, applicant denied conflict of interest existed – First respondent advised applicant that was prepared to review opinion of conflict of interest, advised of Solicitor-General’s opinion, and advised that wanted to retain applicant – Applicant met with manager (“C”) and suggested options to resolve issue – First respondent considered none of submissions resolved conflict or perception of conflict – Applicant sent first respondent email which Authority considered shattered attempts to resolve key issue between parties – First respondent replied stating proposed action termination of applicant’s employment and inviting comment – Applicant did not reply to first respondent but attached letter to email advising colleagues that had been dismissed – First respondent dismissed applicant – Authority found first respondent valued applicant’s work – Found applicant formed genuine conclusion no conflict existed – Applicant of opinion EA and Standards of Integrity and Conduct (“Standards”) did not expressly preclude her acting in matter for private clients, and C authorised applicant to complete work already in progress for private clients – Found applicant of view that could manage situation to enable retaining role with first respondent and acting as solicitor on record in SC application – First respondent considered applicant’s suggestions not viable – Found first respondent’s actions not indicative of pre-determination or that acting under instructions from Solicitor-General – Found little turned on first respondent recording telephone conference, although was unwise professional etiquette - Applicant suggested first respondent created new category for dismissal, being conflict of interest – Authority found conflict of interest within orbit of capacity or performance – Found applicant employed by Crown entity – Found essential requirement of employees in government departments was duty of loyalty to immediate employer and to Crown, of which Department is integral part – Found duty on such employees to avoid conflicts of interest and actions which could give rise to perception of conflict – Found citing of Minister of the Crown as respondent in any matter before the Court, let alone in a matter alleging bias on part of Judge of Court of Appeal, must constitute palpable breach of duty of loyalty – Found no matter that not stipulated in EA, but was one of fundamental plinths underpinning business of government – Found Standards set out duty that personal lives of no concern unless interfered with work performance or reflected badly on integrity or standing of State services – Found first respondent did not require applicant to withdraw from Supreme Court case, but was clear that decision was applicant’s – Found first respondent acted properly in reaching decision to dismiss – Found provided considerable time for applicant to present alternatives and employed significant resources in attempting to resolve impasse – Found acted as fair and reasonable employer – Found first respondent entitled to decide applicant had conflict of interest – Found first respondent not directed by Solicitor-General as to how matter to be addressed – Found first respondent appropriately addressed concerns and afforded opportunity to provide proposals to deal with issue – Found independent legal advice confirmed first respondent’s view – Found applicant failed to provide proposal within extended timeframe – Dismissal justified - Solicitor |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Conservation Act 1987;ERA s103A;ERA s133;ERA s134;Fair Trading Act 1986;Official Information Act 1982;Privacy Act 1993;Public Finance Act 1989 s2(1) |
| Cases Cited | Aupa’au v Gillett New Zealand Ltd (Palmer J, Mar 1997, CEC 5/97) |
| Number of Pages | 22 |
| PDF File Link: | ca 101_09.pdf [pdf 66 KB] |