The children’s ministry is accused of abandoning a traumatised former worker. David Williams reports

As happens so often, raw emotion and despair play out in a drab, air-conditioned room dominated by greys and off-whites, under the glare of fluorescent lights.

Last week it was the turn of former Oranga Tamariki employee Bai Zammit-Ross, whose personal grievance was heard by the Employment Relations Authority.

The power of the state was on display – for a beleaguered children’s ministry under heightened scrutiny and whose chief executive has resigned. Two suited senior managers gave evidence at the Christchurch hearing, led by a pair of lawyers from national firm Buddle Findlay who flew in from Wellington.

Zammit-Ross, flanked by her local lawyer and a union secretary, pleaded her case in a floral dress from an opportunity shop. Reminders about what she should say were written on the back of her hand in ballpoint pen.

She laid bare the worst years of her life, as a work injury at a youth justice facility spiralled into depression, alcohol disorder, post-traumatic stress, and a functional tremor.

Two years ago she was compulsorily retired, on medical grounds, from her job as a residential social worker at the youth justice residence Te Puna Wai ō Tuhinapo, in Rolleston, south of Christchurch. But before her “dismissal” – as her lawyer Andrew McKenzie puts it – took effect, Zammit-Ross filed a personal grievance.

The question for Employment Relations Authority member Helen Doyle was: had the children’s ministry acted as a fair and reasonable employer?

It’s a complex case, and the hearing threw up all sorts of questions about the rights of employees and the obligations of employers. How far does a duty of care extend? When should a work relationship end?

One of the most interesting points from the day was a side-battle over ACC cover.

Oranga Tamariki’s third-party ACC provider, WellNZ, found Zammit-Ross’s post-injury struggles related to trauma she suffered as a child. However, that decision was overturned on review. Now, the review decision is being appealed to the district court.

It’s Oranga Tamariki versus ACC, says Zammit-Ross, who faces having to pay back compensation and trying to survive on a sickness benefit. “It’s your guys’ decision, entirely, which is really unfair,” she told her former employer.

Janice Gemmell, secretary of the National Union of Public Employees, calls it a disgrace.

Last week, she berated Oranga Tamariki for not following its stated values – of aroha (love), respecting people’s mana (supernatural force), tika (truth) and pono (sincerity).

“I’m really disappointed to be here. I genuinely believe if Oranga Tamariki acted according to its own values … I don’t think we’d be here.”

Bai Zammit-Ross arrives at her Employment Relations Authority hearing with union secretary Janice Gemmell. Photo: Joe Morgan/Broadcast Media

It was soon after Child, Youth and Family became Oranga Tamariki in 2017 that the trouble started for Zammit-Ross.

She was working by herself in the outside courtyard of Te Puna Wai in May 2017 when a fight broke out between two youths over a pair of shoes. Zammit-Ross separated them and injured her wrist.

An incident report was made the next day, she says, but Oranga Tamariki managers say they weren’t aware of the incident until October, after a doctor’s visit.

The social worker continued to work after being injured, putting herself on kitchen duties to get away from young offenders. However, the sprain got worse. “Going to work every day became harder and harder,” she says of her 35km drive from Governors Bay.

Zammit-Ross got a medical certificate and left work – not knowing she’d never return.

While off work, she’d submit fresh medical certificates but she says Oranga Tamariki only checked on her twice.

She froze upon receiving a phone message on the morning of January 8, 2018, saying she was on the roster to work that afternoon. “I was sitting in my car; I just got home. I just had a panic attack, I really wasn’t ready to be at work and I had a current medical certificate.”

Te Puna Wai’s residence manager Russell Caldwell said later there was often miscommunication over rosters and medical certificates. “If that was the case then that was regrettable. I don’t know what the specifics are.”

In February, Caldwell sent a letter to Zammit-Ross requesting a meeting. One option for resolving long-term leave issues was medical retirement, the letter said.

Zammit-Ross told last week’s hearing: “It was after only five months of being unwell that I was sent a letter about medical retirement, with one phone call in between to check out my wellbeing – [and] a Facebook message. They hadn’t given me enough time before pushing.

“It was too stressful for me to make a decision and they should have given me more time to get well.”

McKenzie, Zammit-Ross’s lawyer, posited Oranga Tamariki neglected her between October and February.

Caldwell, who is acting national operations manager for all youth justice residences, said it was thought the social worker had a wrist injury, and it was only later it became fully aware of wider problems. Oranga Tamariki could have done better, he said, while rejecting neglect as a “global position”.

As 2018 progressed, Zammit-Ross had several medical assessments – the first of which she was advised not to share with her employer because it contained such intimate personal details. Mediation was held in July, followed by medical assessments.

Caldwell’s boss, Ben Hannifin, the general manager of youth justice residences, became involved. It was suggested Zammit-Ross take voluntary medical retirement but after she rejected this, Hannifin made it compulsory.

Addressing authority member Doyle, Hannifin recalled a difficult meeting in October 2018 at the union offices.

“It was an emotional meeting,” he said. “Bai presented as fragile, tearful and emotional. I had a huge degree of sympathy and sadness.”

It was a year since Zammit-Ross had left work and Hannifin said she was “really unwell”. “The thought of putting her in a job was cruel, if not dangerous. She had to get well first.”

A medical assessment completed before the meeting with Hannifin suggested Zammit-Ross was unlikely to return to a full-time, frontline role. But Gemmell, the union secretary, said the assessment indicated there was a 50 percent chance she might be able to occupy an alternative, part-time role in the medium-to-long term.

Caldwell said Oranga Tamariki relies on medical advice to determine when someone is ready to return to work. Redeployment in this case wasn’t an option, he said. “It wasn’t on the table and it still isn’t because of her ongoing condition.”

When she’s well enough to return she can apply for jobs at the ministry, he said.

Caldwell clashed with McKenzie, Zammit-Ross’s lawyer, over redeployment. “You’re getting pedantic about the wordsmithing,” Caldwell said.

McKenzie laid out why he thought compulsory medical retirement was a farce: “You want to dismiss her now and undismiss her later, when she’s well?”

Russell Caldwell, in the red tie, is flanked by his legal team and colleagues, including Ben Hannifin, on the right. Photo: Joe Morgan/Broadcast Media

Social work can be difficult and confronting, especially when dealing with youth offenders. Staff can use force as a last resort.

At last week’s hearing, ructions within Te Puna Wai were put forward as important context to Zammit-Ross’s case – including a lack of supervision.

Caldwell started at the South Island’s only youth justice facility in April 2015.

(Previously he’d been general manager of the controversial Don Dale youth detention centre in Northern Territory, Australia. In 2017, he told a royal commission he “began to lose grip on the strategic direction … and operational matters” at Don Dale, where boys were gassed, spit-hooded and shackled.)

Three months later, in July 2015, police wrote a worrying report about incidents at Te Puna Wai.

Gemmell read excerpts of the report to authority member Doyle. It mentioned an escalation in the number and severity of assaults on staff. “The increasing frequency and severity of violent offences is yet to escalate to the point of serious injury or loss of life, however it is possible that this situation will eventuate in the future,” said the report, covered by Stuff.

In 2016, substantial effort was put into improving supervision at Te Puna Wai, Caldwell said. An independent expert was brought in, using additional funding, for clinical and group supervision. A governance group, which included union representatives, was formed and a safety action plan created.

“The level of incidents and assaults was the top of that priority. Staff safety was front and centre in that process.”

McKenzie, Zammit-Ross’s lawyer, said many Te Puna Wai staff had left, or were forced to leave, because of injury or illness in the last six years. Caldwell rejected the suggestion people were medically retired to “get them off the books”. “That’s not how we operate.” He also said some injuries were not work-related.

However, Caldwell admitted supervision at Te Puna Wai wasn’t adequate for most of the seven years Zammit-Ross worked there.

McKenzie said staff supervision should be weekly in the first year of social work, and fortnightly thereafter. Records suggested Zammit-Ross had been supervised just 11 times.

More supervision should have taken place, Caldwell said.

Supervision builds resilience, McKenzie said, suggesting that Oranga Tamariki’s failure to provide more regular supervision affected Zammit-Ross’s ability to recover.

“I can’t agree or disagree,” Caldwell retorted. “You’re only speculating about medical issues.”

Gemmell, the union secretary, points out Zammit-Ross was working alone in the courtyard on the day she was injured in May 2017. “Staffing was clearly an issue on that day,” she said, while admitting some issues had been more settled recently. However, the union is still dealing with members at Te Puna Wai who have been injured.

Oranga Tamariki had failed Zammit-Ross, Gemmell said. The lack of supervision was part of it, but she also felt the children’s ministry had washed its hands of its vulnerable worker.

“They had an obligation to keep Bai strong and safe, to practice and provide a safe environment.”

Zammit-Ross’s functional tremors were evident at last week’s meeting. “I never had these before,” she said. “I can’t even make it to the toilet, let alone chop a vegetable.”

While she still can’t work there had been progress, with the help of anti-depressants, counselling, and physio. “I feel well – it’s just my body now.”

She implored Oranga Tamariki to take better care of its staff, before circling back to her own situation: “You don’t care. I shouldn’t be in this position.”

Newsroom left the full-day hearing before it finished, so we contacted Oranga Tamariki to see if it wanted to make further comment – in case we missed key elements of its case.

It refused to provide a statement attributable to a person. Oranga Tamariki’s anonymised, emailed statement said: “It is not appropriate for us to comment prior to the authority member issuing their decision.”

David Williams is Newsroom's environment editor, South Island correspondent and investigative writer.

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