Melania Trump's speechwriter could rely on condonation defence

3 August 2016

The world has been transfixed by firstly, the Republican, and secondly, the Democratic, conventions in the United States.

Both have been overflowing with drama and controversy. Senator Ted Cruz refused to endorse Donald Trump for president. That certainly caused uproar. And then Melania Trump gave a speech to the Republican convention that in parts appeared to follow almost word for word an address given in 2008 by the current first lady Michelle Obama.

Many will have seen the comparisons on the television screen and it was easy to conclude that Melania Trump was copying Michelle Obama.

Initially Trump's campaign chairman denied there was any wrongdoing saying that the two women simply used similar words and that Melania Trump was expressing her personal feelings. "That's the final word" he declared. But the controversy continued.

Eventually a poor speechwriter emerged for the Republicans, one Meredith McIver.

She said that she was an in-house staff writer and took responsibility for including the passages from Michelle Obama's speech. It was all her fault, she said.

McIver said that she offered her resignation but that the Trump family refused to accept it. She added that she had listened to Melania Trump read parts of Michelle Obama's speech and that Melania Trump told her what she liked. And as they say the rest is history.

But what are we to make of what was essentially cheating by the Republicans in copying Michelle Obama's speech. If this happened in New Zealand could the speech writer be sacked, and should they have been?

Certainly what occurred was not honest, but it would be unfair to hold the speechwriter responsible for using excerpts from Michelle Obama's speech when Melania Trump told her to do it.

If it happened in New Zealand, the speechwriter could rely on the defence of condonation. Essentially that means that if an employer condones what occurred they cannot later discipline the affected employee for it.

This was demonstrated in a case brought by Paul Gordon against his employer Student Management Software Solutions (SMSS).

Not long after a new general manager commenced work, SMSS dismissed Gordon for a slew of allegations. These included undertaking work for his own company during work time and using SMSS's systems, equipment and software code for that company as well (among other things).

Gordon challenged this decision and the matter was heard by the Employment Relations Authority.

Gordon claimed that his activities were permitted by the terms of his employment agreement and that he had enjoyed the permission of his manager for the above activities.

The previous general manager gave evidence at the hearing and confirmed Gordon's claim. He said that before Gordon commenced employment for SMSS, Gordon had told the company of his other activities.

The previous manager said that he had in fact actively encouraged Gordon's activities as he saw them as a benefit to SMSS.

Gordon had access to computer tools that SMSS did not, but which he applied to SMSS's benefit. Gordon's skills were also updated from these activities and he remained a highly skilled, motivated and effective employee.

The authority found that "it suited both parties to purposefully blur the lines between Mr Gordon's duties for SMSS and his secondary employment" and held the dismissal was unjustified.

Quite properly the law in New Zealand will not let you tell or permit somebody to do something and then discipline them for that.

Peter Cullen is a partner at Cullen – the Employment Law Firm. He can be contacted at peter@cullenlaw.co.nz.