The dispute regarding the appointment process for two Assistant Fire Region Managers has been sent back by the Employment Court to the Employment Relations Authority for resolution, after holding it had no jurisdiction to order that the appointments of Messrs Ditmer and Boere not take place.
In a day long Court hearing yesterday (which dealt with both the NZPFU’s case and the case of the Chief’s and Deputies’) dealing mainly with jurisdiction, the Court considered whether the appointments could be undone by the Employment Relations Authority or the Employment Court.
It held it had no jurisdiction to cancel or vary the employment contracts of Messrs Ditmer and Boere, even if they were unlawful.
The Union is concerned about the implications of the Court’s judgment, in light of Fire Service practices. The offers of employment to Messrs Ditmer and Boere were made before the internal reviews of the appointment process, and were expressed to be conditional only on those reviews being unsuccessful. This meant that as soon as the Chief Executive rejected the review applications, the employment contracts became unconditional. According to the Employment Court, those agreements cannot now be set aside by it. This is so even if the appointments were unlawful or the review process was unfair.
The Court was of the view that any setting aside of an employment agreement could only be done (if at all) by the High Court and not the Employment Court. (The Court made no ruling on the legality of the appointments, but commented that the Union’s case was “arguable”. The Court considered at the preliminary stage that the Fire Service’s case seemed stronger than the Union’s, but carefully emphasised that any final view on that was for the Authority after investigation and not the Court at this early stage).
In the Union’s view, this is a most unsatisfactory situation. Although the fairness and legality of the process and appointments can be now tested and ruled upon by the Employment Relations Authority, there are now serious difficulties in setting the appointments aside and having a fair process put in place.
The Committee will need to consider the long term implications of this decision and will also consider any responses that may be appropriate in conjunction with ongoing legal action.
Members will be kept up to date as the matters develop.
