Court notes issues with social worker started as supervision-related concerns
The Employment Court of New Zealand recently dealt with a case involving the dismissal of a senior social worker.
The decision highlighted important issues around what constitutes serious misconduct and the process employers should follow when investigating and dismissing employees.
In this case, the worker was dismissed for alleged serious misconduct related to his case management practices and interactions with colleagues.
Background and initial concerns
The worker had been employed as a senior social work practitioner since 2010. In April 2017, he transferred to a newly formed government agency responsible for child welfare when it came into existence. This transfer involved a "safety checking process" to ensure employees didn't present any safety concerns.
Just a few months later in June 2017, concerns were raised about the worker's performance and behaviour by his manager and supervisor. These included issues with his participation in supervision sessions and alleged poor-quality work.
The regional manager met with senior staff and received written statements outlining concerns about the worker's social work practice, behaviour, and alleged resistance to management direction. The supervisor expressed concerns about the worker's participation in supervised consultations and an alleged refusal to discuss work plans.
At this initial meeting in June 2017, the worker was presented with a letter detailing seven areas of concern, including refusal to discuss work plans, unwillingness to engage in case consultations, and incidents of allegedly aggressive behaviour towards his supervisor. The letter also mentioned two previous incidents - a letter of caution from 2015 and a warning letter from 2016.
The employer’s wider investigation
According to records, what started as supervision-related concerns soon expanded into a wider investigation. In August 2017, the regional manager informed the worker that additional concerns had been raised about his ability to engage appropriately with clients.
The investigation was broadened to include complaints about the worker's handling of three specific cases involving vulnerable children and families. These cases were referred to as Baby M, Family K, and Family S. The worker was placed on paid special leave while an external investigator looked into the expanded allegations.
An independent investigator was appointed and provided with terms of reference outlining the scope of the investigation. The terms of reference included reviewing documents, interviewing staff, and potentially interviewing external parties. However, these terms were not initially shared with the worker despite his requests, which shaped his response to the investigation process.
The investigator conducted interviews with staff members but did not speak directly with any of the families involved in the cases under review. The worker declined to be interviewed as part of the investigation process, expressing concerns about the investigator's qualifications and the integrity of the process.
Parties’ arguments and issues
The employer argued that the investigation findings substantiated serious misconduct by the worker that justified summary dismissal. They contended his actions amounted to repeated refusal to follow reasonable instructions and unsafe social work practices.
The employer's counsel submitted: "[The employer] was entitled, and obliged, to adopt a conservative and risk adverse approach to matters of conduct because its clients are vulnerable people."
However, the worker's representative argued the allegations did not meet the threshold for serious misconduct and were more akin to performance issues that should have been addressed through other means. They criticised the investigation process as flawed and predetermined.
The worker's counsel argued: “Even seen through a lens of the highest scrutiny, the breaches attributed to [the worker] in the investigation did not fall into the category of serious misconduct."
The Court's key considerations included:
- Whether the conduct attributed to the worker constituted serious misconduct
- If the employer's investigative process was fair and reasonable
- Whether alternatives to dismissal were properly considered
The Court's analysis and decision
The Court found significant issues with how the employer categorised and investigated the allegations against the worker.
It determined that many of the concerns raised were more properly characterised as performance issues rather than serious misconduct.
On the key allegation regarding supervision, the Court stated:
"There are two difficulties confronting [the employer’s] decision making about supervision. The first difficulty is that the shortcoming attributed to [the worker] remained somewhat elusive throughout the investigation and during the decision-making; he was participating and he did so especially in the bespoke solution [the regional manager] created."
Regarding allegations of aggressive behaviour, the Court noted:
"I agree with [the worker's counsel] that a fair and reasonable employer could not, in the circumstances, have concluded that this aspect of the complaint amounted to serious misconduct without being able to tie the allegations to a specific event that was current and being investigated."
The Court was also critical of how the employer handled the investigation process, including not providing the worker with the terms of reference when requested. It found elements of predetermination in the decision to dismiss.
The Court also found issues with how the specific cases (Baby M, Family K, and Family S) were investigated and interpreted. For instance, regarding the Baby M case, the Court noted that the investigator did not adequately explore the possibility that delays in arranging a family group conference might not have been the worker's fault.
Ultimately, the Court concluded:
"Potentially, [the employer] could have concluded that some of [the worker's] work fell below its expectations and required remediation. What has not been shown, however, is that either individually or together the concerns about him amounted to serious misconduct."
"[The worker] was unjustifiably dismissed by [the employer]. As a result of the conclusion that serious misconduct has not been established, it is unnecessary to consider the remaining issues identified by counsel."
The Court ordered remedies including reimbursement of lost wages and compensation for humiliation and loss of dignity. However, reinstatement was not considered practicable given the time elapsed and breakdown in the employment relationship.
