Ngawharau v Porirua Whanau Centre Trust

We have far too many people in our community who have long criminal histories and when they are released have difficulty adapting to the working environment. With the aging of our workforce, we are going to need to find more effective ways to make this transition to being a productive member of the community.

This story is about one such situation that went pear shaped through lack of effective communication.  Apart from being a sad tale, this is really important for ordinary employers working with socially vulnerable people because it places another responsibility on their shoulders.

Mr Ngawharau had a long history of criminal offences, drug and alcohol addiction. He had spent 20 years staying clean and bettering himself (albeit with a couple of convictions along the way) to achieve entry to study for a degree in social work with Te Wananga o Aotearoa, and at the time of this incident, was in his second year of study towards his degree.

In February 2012, at 52 years of age, Ngawharau went into the first regular job he had ever held, as a social worker support person with the Porirua Whanau Centre Trust. The Trust offered Ngawharau the role knowing his history.

The Judge commented

In taking on such a vulnerable worker the Trust also assumed more responsibilities than might otherwise have been the case.

One of those responsibilities is the extra effort an employer of a vulnerable worker may have to go to in order to comply with its good faith obligations…

Ngawharau’s role was essentially to provide assistance to young people in need and to families having to deal with domestic violence. In May 2013, at the initiative of his employer, Ngawharau was seconded to a sister organisation for a week, to recruit students for its programmes. At the same time Ngawharau heard gossip that the manager, Ms Kelly, was not happy with his performance and that he had become a liability. Kelly, however, contended that Ngawharau was not happy (something he denied) and she offered a secondment to give him a change.

The terms of the secondment were not clear (in fact Ngawharau didn’t know what a secondment meant) and he was called back to the Trust to do work during the week. When he returned to the Trust after the week, the sister organisation asked the manager to extend the secondment.

After three weeks of secondment, Kelly says she called Ngawharau into her office and said he had to choose which organisation he was working for and the Trust couldn’t afford to pay him if he wasn’t working for them. Ngawharau heard her say “I hate to be the bearer of bad news but I have to let you go”. He reacted angrily and stormed out of the meeting, knocking over a chair in the process. The following day he returned to work, apologised for his reaction and asked for confirmation of the decision in writing. Instead, Kelly suggested it would be easier if he resigned, to which he said he would think about it. He never resigned and never returned to work and the employer claimed he had abandoned his job.

Ngawharau contended that he had been dismissed.

The Employment Authority agreed with the employer, that Ngawharau abandoned his job, but the Court found that the actions of the Trust resulted in the termination of the employment, therefore it dismissed him. Having reached this conclusion, the Judge applied the test as to whether the dismissal was justified and found that there were serious procedural defects in the process.

He went on to say that as Ngawharau was, in his terms, a vulnerable worker, the employer needed to treat him ‘with kid gloves’…”it was essential that the employer comply in every respect with its statutory good faith obligations”.

The really important message here is that where you have workers who do not have a solid history of work experience, the court has found it is incumbent on the employer to make an extra effort to ensure the employee understands what is happening. This principle could be applied to school leavers, people with language or literacy difficulties, people who are new to New Zealand and people who have not been active in the workforce before.

Anne Aitken, HR Professional, anne@anneaitken.co.nz