The NZPFU strongly advises members that it is not in your interests to engage with FENZ’s Behaviour and Conduct Office (BCO) as key issues including procedural fairness and structure for receiving and handling complaints is yet to be determined, and practical and fair complaints processes are yet to be realised.

It is our view that the current complaints process is a shambles with the most basic principles of procedural fairness not being adhered to.  Regardless of the complaint, complainant or accused we are finding there is no room to discuss fair and pragmatic processes to deal with complaints and undertake investigations where necessary.  In some cases we are having to formalise personal grievances just to access the information the accused has a right to. This is neither fair, reasonable or consistent with good faith obligations. 

FENZ’s lack of defined complaint processes and the absence of procedural fairness and natural justice is harming those making complaints, those being accused, and others in the workplace that are being drawn in through breaches of privacy and fishing expeditions to bolster complaints.

Last year, in the wake of national press on the lack of processes and fair procedures,  FENZ rushed to stand up the Behaviour and Conduct Office.  The result has been a hot mess.   

• We have seen complaints being made to the BCO that just get batted back to Area Management and HR so all that has achieved is additional handling of a complaint and greater exposure of personal information to unidentified BCO staff. 
• We have been informed of a serious error where one complaint was sent by the BCO back to the Manager who was the subject of the complaint.   
• The situation has been compounded with a high turn-over in HR and a parade of contractors. The BCO is supposed to relieve the burden on HR but all it does currently is return the complaint to management who turn to HR for support.    
• There has been an increased use by FENZ of senior lawyers and partners of law firms to conduct investigations.   We have found contractors and external lawyers have no investment in the organisation or the people and little appetite for constructive low-level resolution.  There is an inherent incentive to avoid resolution when you are paid/contracted per hour and therefore can claim more the longer or more protracted a complaint process becomes. We have found at times a marked difference when dealing with employed personnel as they are willing to find appropriate and practical resolutions that build relationships rather than destroy careers.  
• Management decision-makers are appointed but they are taking such a hands-off approach they are giving decision-making to the contracted investigator by default.  
• Accused personnel are not being provided with the information FENZ has about the complaint and are not being informed of their right to representation before being spoken to about the complaint.
• Those that are not the complainant are being asked to speak with an investigator without realising that means they are actually becoming involved in a disciplinary investigation.  Without any information about the complaint, other people not directly involved are being asked to discuss their views of the accused, are not warned their views may be considered as part of a disciplinary process, are not told their involvement is voluntary, and are not told they can seek representation and advice before being interviewed.

Despite having already stood up the BCO, in December FENZ released a consultation document on the proposed Behaviour and Conduct Office scope and functions.  This week it released a decision which claims to represent the feedback and set up a “high level implementation planning framework” to ensure the successful stand-up of the BCO.

Those actions in themselves are evidence that the BCO is not ready and has been operating without a determined scope of functions or processes.  Hence it is not resourced and not functioning.

Critical issues of fairness and confidentiality have been relegated to “future design” or to be “clarified through the detailed complaints process which we will be working through with stakeholders”.

The NZPFU made a submission in the January consultation process on key matters regarding the scope and functions and critical issues including as procedural fairness, natural justice and confidentiality of information.  FENZ claims it’s decision document is a reflection of the feedback received by that process.  Those decisions do not align with the NZPFU submission and considering we represent the vast majority of all FENZ employees our views should have had priority.  The impact and consequence of poor complaints process is massive for employees and their right to a fair and reasonable workplace with security of employment.  

Our key submissions included:

1. The BCO cannot set standards as such standards form part of the employment relationship and impact on the security of employment.  Any such standards must be agreed including how they will be applied with the NZPFU as the representative of our members.
   
   
2. While the process and standards of procedural fairness can be the same, the reality is that complaints against an employee are very different to complaints against a non-employee due to the significant differences in possible consequences.
   
   
3. The creep into language of “unwanted behaviour” is not accepted.  The consequences of allegations and investigations into an employee’s conduct must meet a threshold that is higher than “unwanted”.  Unwanted is a very broad term completely subjective to the complainant and the spectrum of “unwanted” to each individual can be non-exhaustive. It can be very low level and based on personal preferences rather than a breach of an accepted standard or level of conduct and behaviour. Depending on the individuals and circumstances “unwanted” may not reach any standard or definition of bullying, harassment or victimisation.  It can also be used as a form of institutional bullying or harassment by making complaints which in any other circumstances would not be dealt with in that way.  Even if the BCO had a sound triage process (which is absent in the current proposal) it still in some way formalises a complaint has been made and therefore a record is made.  Even if the complaint is without merit or malicious, some damage to the person wrongfully complained about and their reputation may be tarnished or in the least they have unnecessarily been brought to the attention of the BCO in that context.
   
   
4. The proposal refers to the need to have a “trusted” process.  Trust is earned and cannot be imposed. It takes time to trust a process.  The serious flaws in the proposed process if implemented will impact on any ability for the process to be ever trusted.
   
   
5. The proposal document lacks detail and fails to provide an actual process.  The scope and functions are not clear as we have not been provided with coherent map of the receipt of the complaint process from receipt to resolution including who receives the complaint, makes the decisions on who will investigate or be the decision-maker etc and the steps involved. 
   
   
6. The process outlined in the consultation proposal does not meet the standards of procedural fairness:

• One of the most basic standards of procedural fairness is transparency and consistency of the process.  This proposal is not clear on the actual process, who will make decisions on what to do with the complaint (triage), where the complaint goes, how the decision-maker is determined, who is investigator (or the process for determining the need for an external investigator). 

• The flow from BCO, HR, and Region/District/Workplace Management is not explained.

• The protection of information and privacy is not even considered by the proposal. The structure is cumbersome and many hands may touch the complaint from receipt through to investigation and resolution in this proposal.  The proposal is silent as to who will see the complaint, who will deal with the complaint, who is the decision-maker, how is the complainant’s and the person accused rights and information protected? Without clear and transparent process with named positions there is no accountability or responsibility for ensuring the fair process is adhered to.

• It is a basic principal of natural justice that the person accused has access to all information being considered including the name of the complainant and the complaint. There is nothing in the process to ensure that is included with protections to protect unnecessary dissemination of information.

• It is a basic principal of natural justice that the person accused has the right to respond in the presence of the decision-maker. 

In unity,
Wattie Watson
National Secretary