Was 'bullied' worker a whistleblower?

TRACY NEAL
Last updated 12:58 12/06/2014

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An Employment Court judge is to consider whether a sacked city council worker was a whistleblower.

Judge Bruce Corkill asked during closing submissions in the Employment Court in Nelson yesterday whether Robyn Hutchison's sacking from Nelson City Council fell within the parameters of protected disclosure.

The Protected Disclosures Act encourages people to report serious workplace wrongdoing.

The lawyer acting for the city council, Maree Kirk, and the agent representing Hutchison, Hugh Flower, have been given until next week to file submissions on protected disclosure.

Corkill told the court that allowing further time was in no way a reflection of what his final decision on the case would be.

Hutchison is fighting her December 2011 dismissal on the grounds it was unjustified. She was employed in May 2011 as the part-time executive assistant to two senior managers but fired after a disciplinary process.

She claimed several instances of bullying and intimidation by her bosses, but a tipping point was the treatment of a former colleague at a work performance meeting in which she was asked to take notes.

Details surrounding the former colleague, known as Mr J, who died in September 2011, were not admissible in court.

The council maintains it was within its rights to dismiss Hutchison on grounds including a breach of duty of good faith in that she sent work emails to her home email address, a confidentiality breach by making a statement to the police, at the behest of the coroner, and another breach by undertaking secondary employment.

Kirk said in closing evidence that the plaintiff [Hutchison] had not pleaded the Protected Disclosures Act in relation to why she sent confidential documents that belonged to the council to the coroner.

The documents included meeting notes from performance meetings involving Mr J.

The notes were minutes from three of four meetings attended by Hutchison, while notes from another meeting she had taken from the council's documents storage system.

Kirk said there was no need for Hutchison to have forwarded the documents to the coroner because the council had acted ethically by providing any information the coroner wanted.

She also questioned why Hutchison would do that when, unlike other members of staff, she hardly knew Mr J.

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Corkill said the real question was whether it was a whistleblower situation.

He said the act focused on the belief of an employee and whether actions were reasonable in the circumstances an employee found themselves in.

Jonathan Sanders, who helped the decision-makers in the disciplinary process, said under cross examination on Tuesday, that it had not occurred to him until now that it was a potential whistleblower situation, but there was nothing to suggest it would meet the criteria. Kirk said yesterday it was "difficult" having the possibility introduced to the process "three years later". She said the council provided for internal disclosure.

Corkill said it did not matter that the whistleblower argument was not on the table at the time.

That was down to the analysis of the court to establish.

He said there were prior steps that should have been taken in the disciplinary process, which led him to believe it was still potentially a matter covered by protected disclosure. He also said the documents sent from work to home, and from there to another authority, could be defined as whistleblowing, but it was a "complex analytical exercise".

- The Nelson Mail

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