As we near this year’s election, the nexus between statute and protocols imposed by employers has come into focus in a recent Employment Relations Authority decision. The Personal Assistant to the Mayor and Chief Executive of Whangarei District Council nominated an opposing Mayoral candidate to run for office. She was then fired.

The Council’s Chief Executive dismissed Janet Walters-Gleeson from her position as Personal Assistant saying that her actions seriously breached the Council’s Code of Conduct and Election Protocols and had the potential to damage the Council’s reputation and ability to operate as an impartial administrator. He stressed that because the nature of her role involved access to highly sensitive confidential information she must “be beyond reproach”.

Ms Walters took a claim to the Employment Relations Authority. The decision, released on 25 August 2014, found the dismissal to be unjustified as the Chief Executive’s actions, on behalf of the council, were not what a fair and reasonable employer could have done in the circumstances.

The Authority came to this view for a number of key reasons. Firstly, the Chief Executive held Ms Walters to an unreasonable standard. As a citizen on the electoral role Ms Walters was entitled to nominate a candidate in the Council’s elections. The protocols and codes of the Council sought to narrow the scope of employees’ actions to less than statute allowed. While it is permissible to do so, such limits must be articulated with great clarity so there is no doubt as to what is or is not acceptable. Here the protocols were ‘fraught with contradictions and uncertainties’ and appeared to be at odds with those of other Councils. In the dismissal letter, the Chief Executive wrote that Ms Walters must be beyond reproach and the Authority found that a fair and reasonable employer could not expect a lower standard of its CEO than his PA. As the Chief Executive claimed to be left open to allegations of bias, yet no disciplinary review was carried out by the Council, for Ms Walters to be disciplined in such a way imposed a double standard.

Secondly, the Chief Executive failed to genuinely consider Ms Walters’ explanation as to her error. Ms Walters submitted that her inappropriate act was done innocently but upon reflection she recognised it as the wrong thing. In comparison, the Chief Executive’s accounts of what he perceived Ms Walters’ mental state to be contradicted themselves and it was evident he had not taken her explanation into consideration.

Thirdly, the Chief Executive’s conduct breached the statutory obligation of dealing with Ms Walters in good faith. The Chief Executive made misleading statements in both his letter and his investigation. Additionally, he failed to acknowledge the fact that Ms Walters had disclosed her error to in-house counsel or to discuss what she might do to remedy any harm caused.

The Authority held that Ms Walters’ dismissal was unjustified and ordered the Council to pay $31,684.28 in reimbursement of lost wages and as compensation for loss of future earnings as a result of her grievance. In addition, they awarded Ms Walters $6000 compensation for humiliation, loss of dignity, and injury to her feelings; a reduced amount as a result of Ms Walters’ contribution to the situation.

Of course, this case illustrates the need for employers to have clearly articulated policies and protocols, and that these are drawn to the attention of all their employees. It also demonstrates that employees need to be aware of possible conflicts of interests and/or perceived conflicts of interest.