Unjustified Dismissal

Ministers Nick Smith and Rodney Hide have behaved like a bad employer by constructively dismissing Environment Canterbury’s elected representatives. Do New Zealand voters still care enough about democracy to order their reinstatement?

SOMETHING’S VERY WRONG when it’s easier to dismiss Environment Canterbury’s (Ecan’s) 14 democratically elected regional councillors than it is to dismiss a single troublesome employee.

A friend of mine has just been through the tortuous process of dealing fairly with an employee whose performance was causing him concern. As most New Zealand employers know all-too-well, it’s not an easy process. Every effort must be made to, first, gather all the facts, and second, give the employee every opportunity to either explain and/or improve his performance. If the facts and/or the judgements of either side are disputed, then there’s the option of mediation. And, if mediation fails, there’s the Employment Court.

In spite of its complexity, the process is one of which New Zealanders can be proud. Citizens required to sell their labour in order to sustain themselves and their families have every right to expect their employers to treat them fairly. In the event of their arbitrary and unjustified dismissal, it is only right that they be empowered to seek and be awarded reinstatement and/or compensation.

Given the legal obstacles placed in the way of arbitrarily and unjustly dismissing a humble employee, one might be forgiven for thinking that there’d be much greater obstacles to dismissing a whole layer of democratic government.

In the words of the Regulatory Impact Statement prepared for the Government by the Ministry for the Environment:

"There are significant risks associated with the … recommendation to temporarily suspend planned triennial elections for regional councillors (scheduled for October 2010) and to transfer the functions and responsibilities of … elected councillors to government-appointed commissioners until elections in 2013 at the latest. Elections are a right and privilege of any citizen in New Zealand. The suspension of such a right should only be considered in exceptional circumstances."

What, if any, were the "exceptional circumstances" that justified the dismissal of ECan?

The Canterbury regional council’s problems can be sheeted home to the 2007 local authority election which produced seven regional councillors with a mandate to conserve Canterbury’s water resources, and another seven councillors mandated to exploit them. The resulting political impasse made effective and sustainable resource management in Canterbury extremely difficult to achieve.

Difficult – but not impossible. In the event of political deadlock, the traditional solution is for elected representatives to seek out and defer to the recommendations of professional and/or scientific experts. Any other course risks substituting subjective political/commercial considerations for objective scientific analysis.

The scientific consensus in regard to Canterbury’s water resources is that their extreme fragility requires a policy of cautious conservation. This was not what those determined upon the commercial exploitation of the region’s water wanted to hear. If Canterbury agriculture (especially its dairy industry) was to remain profitable, ready access to reliable supplies of water had to be guaranteed.

The change of Government in 2008 provided the exploitation faction with an opportunity to break the political impasse arising from the previous year’s local government election by force majeure.

National’s victory was in no small measure due to a hardening consensus in rural and provincial New Zealand that a decisive break is needed from the rational/scientific approach to resource management. Increasingly, farming and business interests are of the view that New Zealand can have environmental protection, or it can have economic growth, but it can’t have both.

With this pro-growth/anti-green viewpoint firmly entrenched in Canterbury’s city and district councils, it wasn’t hard for the exploitation faction to gather the signatures of the region’s mayors on a petition demanding central government intervention. Even some of those on the conservation side of the argument were persuaded to sign. Sometime, somehow, someone had to break the political impasse on what had become, after two years of constant and increasingly vicious in-fighting, a clearly dysfunctional regional council.

The Government’s response was to commission the former National Party cabinet minister, Wyatt Creech, to lead an investigation into ECan’s failure to come up with a coherent plan for managing Canterbury’s water. Creech’s appointment was highly controversial. Since leaving politics he had become a major player in the dairy industry and conservationists feared that his ties to the agricultural sector would cause him to come down heavily on the side of exploitation.

These fears appeared well-founded when Creech finally presented the Environment Minister, Nick Smith, and Local Government Minister, Rodney Hide, with a report fiercely critical of ECan’s handling of the water issue. He accused the regional councillors of relying too heavily on "the science", and suggested that ECan’s professional advisors were too "green" to be entrusted with the task of enforcing its resource management policies. Accordingly, he recommended that ECan’s elected representatives be dismissed and replaced by an appointed commissioner.

Now, if an employer behaved in this way the Employment Court would, quite rightly, throw the book at him. What Smith and Hide have done, in employment terms, is to ask a friend to draw up a report on their employee’s behaviour. That report (compiled without significant input from the subject of the inquiry) damns the hapless worker’s performance and lays all the blame for the breakdown of the employment relationship at his door. Citing the report, Smith and Hide peremptorily order "Mr Ecan" to clear his desk and leave the building.

What’s missing from this process is any semblance of fairness. Where was the impartial mediator in the battle between the conservationists and the exploiters? When did the Government tell ECan exactly what was expected of it? When was it given the chance to demonstrate that it was both willing and able to follow the Government’s lead?

Radio New Zealand’s reporters have documentary proof that ECan repeatedly asked not only the present government, but its Labour predecessor, for legislative assistance to break the policy log-jam. The record shows they never received a reply.

Old hands at Employment Law will recognise immediately what’s going on here. ECan’s case bears all the hallmarks of what’s known as a "constructive dismissal". The Boss – in the form of Smith & Hide – wanted rid of "Mr Ecan", and deliberately set about "constructing" the circumstances that made his dismissal inevitable.

The voters of Canterbury – and, indeed, New Zealand – if they place any stock at all by the democratic values of their forebears, must assume the role of the Employment Court in this case – and order ECan’s reinstatement.

This essay was originally published in The Independent of Thursday, 8 April 2010.