Court’s endorsement of a restorative approach to difficulties in workplace relationships
In granting an interim application to reinstate a dismissed employee to their employment, pending a substantive hearing of the employee’s claim, the Employment Court in Humphrey v Canterbury DHB [2021] NZ EmpC 59 highlighted the importance and usefulness of a restorative approach to difficulties in workplace relationships.
Simplistically, restorative justice is a way of responding to wrongdoing or conflict that seeks to repair the harms suffered, and to do so by actively involving affected parties in respectful kōrero and decision-making. Restorative justice has been used in the criminal justice system in Aotearoa for some time now, and restorative approaches have also been successfully used in schools and workplace settings.
In this instance, the substantive employment case concerned a claim by Dr Alastair Humphrey against the Canterbury District Health Board for unjustified dismissal and, as remedies, permanent reinstatement, lost wages, and compensation. Dr Humphrey had been dismissed by the DHB for incompatibility. Dr Humphrey’s substantive claim was combined with an application for interim reinstatement and urgency.
In granting the application for interim reinstatement (not the substantive claim) in April 2021, the Employment Court made the following comments regarding the importance and usefulness of a restorative approach to difficulties in workplace relationships:
The Court held that there was a serious question to be tried in relation to the claim of permanent reinstatement, particularly, in the context that the DHB had not explored an option identified in the investigation report of bringing in professional support and assistance to try to rebuild the damaged workplace relationships, and that Dr Humphrey had expressed willingness to engage in a process to rebuild workplace relationships.
The Court commented: “Our understanding of the benefits of a restorative approach in supporting successful employment relationships is developing at a pace, and is consistent with the underlying objectives of the legislation [the Employment Relations Act 2000] and the mutual obligations of good faith. This has implications for the steps that a fair and reasonable employer, particularly a well-resourced one, can be expected to take in dealing with relationship difficulties.” The legislated test of justification is “whether the employer’s actions, and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred.” It would appear from the Court’s comment that whether an employer had attempted a restorative process in an incompatibility situation, prior to dismissing an employee, is one of the relevant “circumstances” considered for justification, especially where the employer’s resources allow for a restorative process.
In terms of the potential impact that granting interim reinstatement could have on other staff, the Court noted the DHB had been developing its internal restorative practice capacity and this, combined with a supported and structured return, would stand the DHB in good stead to support a safe and appropriate reintegration, managed in a constructive manner.
To assist with the reinstatement process, the Court ordered Dr Humphrey and the DHB to attend mediation in good faith, and requested that MBIE’s Mediation Services “make the necessary arrangements for a mediator with expertise in restorative practices to assist the parties in the reinstatement process.” The Court also suggested that the mediator “may consider it helpful, in light of the fact that the DHB has been developing its capability for dealing with workplace disputes on a restorative basis, for the appropriate person within the Human Resources team to be involved from an early stage.”
If you would like to discuss how a restorative approach might assist you or your organisation with difficulties in workplace relationships, I am available to provide assistance as a restorative approach facilitator or advice as a lawyer (and referrals to other facilitators). Please feel free to reach out for a chat.
Disclaimer: The information contained in this article is current at the date of publishing and is of a general nature. It should be used as a guide only and not as a substitute for obtaining legal advice. Specific legal advice should be sought where required.