The Employment Relations Authority finds Oranga Tamariki was justified to compulsorily retire a social worker. David Williams reports

A personal grievance taken by a former Oranga Tamariki staffer has failed.

Bai Zammit-Ross had been a social worker for the Ministry for Children since 2010, working at the Te Puna Wai ō Tuhinapo, a Christchurch youth justice facility. Her wrist was injured in 2017, while breaking up a fight between two youths, and that spiralled into other health issues, including post-traumatic stress disorder.

Zammit-Ross left work in October 2017 and never returned. She was compulsorily retired by Oranga Tamariki on medical grounds 16 months later.

At an Employment Relations Authority hearing in February, Zammit-Ross, and Janice Gemmell, secretary of the National Union of Public Employees (NUPE), claimed her problems were exacerbated or caused by low staffing levels at Te Puna Wai, poor supervision, and inadequate follow-up while she was on sick leave.

Andrew McKenzie, Zammit-Ross’s lawyer, told the hearing she had been neglected by the children’s ministry.

A finding of unjustified dismissal was sought in the case, heard by authority member Helen Doyle. Zammit-Ross wanted compensation and a reimbursement of costs. (A damages claim, for breach of contract arising from an unsafe working environment, and a push for reinstatement were dropped.)

Oranga Tamariki, meanwhile, said it acted fairly and reasonably, and followed its medical retirement policy.

Doyle decided Zammit-Ross’s employment was ended justifiably.

“I have found that the process was fair and the medical information supported after a year of absence it was unlikely Ms Zammit-Ross could return in any capacity in the short- to medium-term. It was clear that it was unlikely and inadvisable from a medical perspective that she could ever return to her previous role.

“In all the circumstances the decision to terminate Ms Zammit-Ross’s employment by way of compulsory medical retirement was one that a fair and reasonable employer could have reached in all the circumstances. It was justified.”

Oranga Tamariki refused to provide comment from a named spokesperson. “We have nothing to add,” its anonymised statement said of the authority’s decision.

Gemmell, of NUPE, is disappointed. “I don’t think it holds Oranga Tamariki to its values.”

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

Doyle’s decision, dated March 12, highlighted several issues.

Despite being injured in May 2017, Zammit-Ross’s first medical certificate didn’t emerge until October. And it was only in December of that year Oranga Tamariki became aware of the associated mental health issues.

Her employer contacted her in early October 2017. In December, the social worker’s manager sent a Facebook message asking to catch up, and asked if she was “doing OK”. Zammit-Ross responded she was going to counselling, and would, in January, be assessed for PTSD.

She needed to take care of herself, she told her boss. “There was no response to that,” Doyle’s decision said.

A phone message in January 2018, saying she was rostered on an afternoon shift, distressed Zammit-Ross. Oranga Tamariki dismissed that as an unfortunate mistake.

The limited contact between October and December of 2017 was distressing, says Doyle, but there was no evidence the lack of contact was intentional. “The amount of contact an employer has with an employee who is unwell is always a balancing act. Some may appreciate more frequent contact and others may not.”

Te Puna Wai’s residence manager Russell Caldwell was sorry Zammit-Ross felt unsupported and indicated changes may be made for contact with employees on medical absences.

(Caldwell started at Te Puna Wai in 2015. Before that he was general manager of the controversial Don Dale youth detention centre in Northern Territory, Australia, in which boys were gassed, spit-hooded and shackled.)

Doyle says there’s no evidence the lack of contact caused Zammit-Ross’s physical and mental health issues – or prolonged her recovery. Even if fault had been found, Doyle said Oranga Tamariki did not necessarily have to keep her job open until she was well.  

Zammit-Ross had 11 supervision sessions in the more than seven years she was employed – and McKenzie, her lawyer, said she should have had 209 sessions. (The supervision policy applies to registered social workers – Zammit-Ross was qualified but not registered. Oranga Tamariki said there is now more supervision.) McKenzie argued more supervision would have increased her resilience and improved her chances of returning to work.

Doyle wasn’t convinced of a causal link, but said regular supervision is desirable in such demanding work. “I do not consider in the circumstances Oranga Tamariki can be criticised for not providing specific support through supervision or otherwise after the incident.”

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

On staffing levels, Te Puna Wai’s Caldwell said it wasn’t unusual for only one staff member to be outside in the courtyard, like Zammit-Ross was in May 2017, and breaking up a fight is within the normal range of incidents at the facility.

Doyle said there was no mention in the incident report of a delayed reaction by staff members who came to help. Neither the report’s writer or Zammit-Ross raised staffing issues subsequently with their managers. On such limited evidence, Doyle wasn’t satisfied Oranga Tamariki was at fault.

A medical assessment of Zammit-Ross, completed for her employer, said she was receiving treatment for PTSD and, while there was improvement, she remained “highly symptomatic and significantly functionally impaired”. There was a low likelihood of a full recovery, to the point where she could return to her previous role, within 12 months. (Even if she did return it would likely have to be part-time, and not in a frontline role.)

In fact, it was medically inadvisable she return to her previous role, the medical assessment said, as it might exacerbate her symptoms and prolong her recovery.

Medical evidence not disputed

The compulsory retirement process started some nine months after Zammit-Ross left work, following three medical assessments that said she was unfit to return to work – the evidence of which wasn’t dispute. Doyle said the process could have started earlier.

The authority is required to balance the interests of employers and employees, Doyle said, and also the particular facts of a case.  

In an October 2018 meeting to discuss compulsory retirement because of medical incapacity, NUPE said Oranga Tamariki should continue Zammit-Ross’s sick leave, which would help her recovery. She had financial worries, as she’d been declined cover for PTSD as a work-related injury by WellNZ, Oranga Tamariki’s third-party ACC provider.

In that meeting, Ben Hannifin, the general manager of youth justice residences, offered no alternative roles – but neither did Zammit-Ross or union secretary Gemmell suggest any. At the time, Doyle wrote, Zammit-Ross was too unwell for rehabilitation or redeployment.

But she was assured she could still apply for jobs at Oranga Tamariki when she recovered. “It was unclear when Ms Zammit-Ross would be well enough to return to work in any capacity,” Doyle’s decision says.

Two departures from Oranga Tamariki’s medical retirement policy – no instructing letter to a doctor for a medical assessment, and Hannifin not meeting Zammit-Ross in person to give his decision and explain the reasons – were minor defects, Doyle said.

“Overall, I find that there was a fair process and Ms Zammit-Ross was able to respond to the medical information that was relied on and advance reasons that she should be kept on as an employee.”

She adds: “Unfortunately, Ms Zammit-Ross remains unwell.”

Hannifin told the authority continuing to pay Zammit-Ross until she was well enough to resume work in a different area was not sustainable or fiscally responsible. Doyle says: “Case law supports that an employer is not bound to hold a job open for an employee who is unable to work.”

Costs in the case were reserved.

Time will tell if Oranga Tamariki takes the advice of Zammit-Ross, who implored the ministry in February’s hearing to take better care of its workers. Her own quest for help now shifts to an ACC review appeal for in the district court.

* This story has been updated with anonymised comment from Oranga Tamariki, provided last week but not received via email.

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

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