When does performance management require regulatory notification?
The Employment Court of New Zealand recently dealt with a case about whether an employer had to follow specific procedures before reporting an employee's competency concerns to a professional regulatory board.
The case centred on a request to move proceedings from the Employment Relations Authority, New Zealand's specialised employment investigation body, to the Employment Court.
A worker who had been dismissed after his professional registration was suspended argued his employer strategically used regulatory reporting to end his employment. He said his employer failed to explore reasonable accommodations or implement proper performance management before taking steps that led to his dismissal.
The case focused on the relationship between employer obligations under employment law and mandatory reporting requirements under health practitioner regulations.
The worker started as a community occupational therapist in January 2022 at Te Whatu Ora – Health New Zealand, a public health organisation. After various assessments in mid-2022, the health organisation determined he was medically unable to perform his duties and assigned him alternative tasks.
On August 18, 2022, the health organisation reported concerns to the Occupational Therapy Board of New Zealand under the Health Practitioners Competence Assurance Act 2003. Based on this information, the Board suspended the worker's registration in November 2022.
In December 2022, the health organisation terminated the worker's employment, citing his inability to hold an annual practising certificate due to the suspension.
The worker's advocate argued the dismissal process effectively began with the notification to the Occupational Therapy Board. She said this notification was premature and that the health organization should have first addressed competency concerns directly with the worker.
The Health Practitioners Competence Assurance Act 2003 states: "If a health practitioner has reason to believe that another health practitioner may pose a risk of harm to the public by practising below the required standard of competence, [they] may give the Registrar written notice of the reasons on which that belief is based."
The Court noted a key tension in the law: "If the ouster provisions apply in the manner proposed by [the employer], they would appear to be in tension with [the Employment Relations Act], which provides that the duty of good faith requires employers to consult with employees prior to making decisions that are likely to have an adverse effect on the continuation of their employment."
The Court examined whether notification to professional bodies could be challenged through employment proceedings.
The health organisation argued that protections in the Health Practitioners Competence Assurance Act prevented such challenges.
The worker's advocate submitted: "If the notification had led to additional support, further training or a formal diagnosis, that might have provided a clearer understanding of his needs and any potential accommodations required to perform his role effectively."
The health organisation maintained that the notification process operated independently of employment obligations and couldn't be challenged through a personal grievance.
The Court identified the central issue: "The issue for the Authority or Court to determine is whether [the employer's] actions in dismissing [the worker] were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or actions occurred."
In deciding to remove the case from the Employment Relations Authority to the Employment Court, it explained: "Parliament specifically contemplates, by creating a mechanism for removal, that there will be situations where it is appropriate for the Court to be the arbiter of fact in the first instance."
