Protected disclosures or breach of trust? Court examines workplace communications boundaries
The Employment Court of New Zealand recently dealt with a worker's challenge to his dismissal for serious misconduct.
The worker sought interim reinstatement, arguing that his advocate's communications should have been protected under whistleblower laws, and that the dismissal was retaliatory due to previous workplace complaints he had raised.
This employment dispute highlighted important questions about protected disclosures, the role of employment advocates, and whether certain communications could justify dismissal.
The worker started as a divisional manager at a council-controlled road maintenance and construction company in June 2023, reporting to the chief executive officer. His role involved leading the construction team, managing projects, and pursuing new business opportunities.
By December 2023, issues emerged between him and the CEO, leading him to raise concerns about workplace stress and unfair treatment.
During the investigation of these initial complaints, the worker went on stress leave in January 2024. The company then placed him on paid special leave while the investigation continued.
His employment advocate sent emails to both the company's board and a council official who was managing a tender process worth 17-24% of the company's annual business.
These communications happened while the company was competing for a five-year road maintenance contract. Without this contract, the company would face significant financial problems affecting its long-term viability.
When examining the communications, the Court noted: "[The employment advocate's] email had the potential to bring [the employer] into disrepute and impact on its relationship with a key client." This observation highlighted the tension between advocacy and business relationships.
The communications included allegations about the CEO and the company's human resources contractor. After a council official revealed these emails to the CEO, the company launched disciplinary proceedings, viewing the timing and nature of these communications as potentially harmful to its interests.
The worker refused to participate in the disciplinary process, maintaining that the communications were protected disclosures under the Protected Disclosures (Protection of Whistleblowers) Act 2022 (PDA).
The Court explained the limitations of protected disclosure laws: "the PDA does not indiscriminately protect all disclosures of alleged wrongdoing – it is only intended to protect people who disclose in accordance with the Act."
This clarified that not all communications about workplace issues automatically receive legal protection.
The Court found significant obstacles to reinstatement, noting: "[The worker's] conduct demonstrates a high level of distrust towards [the employer], making it difficult to see how he could be reintegrated into its workplace."
The Court emphasised the reasonableness of the employer's concerns: "[The employer] was right to be seriously concerned that [the employment advocate's] email had the potential to bring [the employer] into disrepute and impact on its relationship with a key client."
The timing of the communications during crucial contract negotiations weighed heavily in the Court's assessment. The five-year contract was essential for the company's survival, and the communications risked undermining these negotiations.
The Court ultimately concluded: "In the circumstances of this case, and notwithstanding the position of permanent reinstatement under the Act, it is not seriously arguable that [the worker] would be reinstated on a permanent basis." This decision rested on the breakdown in workplace relationships and the impracticability of rebuilding trust in the circumstances.
