JurisdictionNew Zealand
CourtEmployment Court
JudgeJudge B S Travis
Judgment Date18 April 2011
Date18 April 2011
Docket NumberWRC 2/10

[2010] NZEmpC 37



Chief Judge, G L Colgan and Judge B S TravisJudge A A Couch

WRC 2/10

In The Matter OF a challenge to a determination of the Employment Relations Authority

Vice-Chancellor Of Massey University
Martin Wrigley
First Defendant


Terry Kelly
Second Defendant

Peter Chemis& Andrea Pazin, counsel for the plaintiff

Peter Cranney and Anthea Connor, counsel for the defendants

Katrine Evans and Dawn Swan, counsel for the Privacy Commissioner as intervenor


This case involves the interpretation and application of the principles of good faith imposed on parties to employment relationships by s 4 of the Employment Relations Act 2000 (“the Act”) and, in particular, the requirements of that duty introduced by the 2004 amendment to the Act as s 4(1A).


These are issues of very wide application and fundamental importance in employment law. Although they arise in this case in the context of selection for redundancy, they apply equally in other cases in which employment is at risk, including serious disciplinary cases.


On 30 June 2009, following consultation, the plaintiff advised relevant staff of its decision to restructure part of Massey University's operations. This resulted in competition between existing staff for a reduced number of positions and a selection process to decide who should be retained. In the course of that process, the defendants sought information relating to themselves and to other people involved in it. This raised questions about the relationship between the rights and obligations of the parties under's 4 of the Act and the privacy rights and obligations of persons generally, including under the Privacy Act 1993. To assist us in resolving those aspects of the matter, we invited the Privacy Commissioner to express her views on the individual privacy issues raised by this case. She instructed counsel to appear and make submissions. We thank the Privacy Commissioner for her involvement and acknowledge the assistance we have derived from the submissions made on her behalf.


This matter has its origins in a series of claims by the defendants that, in the course of the selection process, the plaintiff failed to disclose information he was required to provide to them under the obligation of good faith imposed by s 4(1A) of the Act. This claim was investigated by the Authority which upheld one part of the defendants' claim and dismissed the remainder. 1 The plaintiff challenged the whole of that determination and the matter proceeded before the Court by way of a hearing de novo.


The parties provided us with an agreed statement of facts, to which was attached a number of key documents. This was very helpful and the statement is the source of much of the summary of facts which follows.


The defendants were employed as senior lecturers in the Institute of Natural Resources (“the Institute”) in the College of Sciences at Massey University (“Massey”). They were located at Massey's Palmerston North campus.


In April 2009, Massey consulted staff of the Institute about a proposal for restructuring. On 30 June 2009, potentially affected staff were told that Massey intended to proceed with an amended version of the proposal which would result in fewer academic positions within the Institute. Existing positions were to be disestablished and a smaller number of new positions created. Those new positions were to be filled using what was described as a “contestable reconfirmation process”. This meant that existing staff would have to apply and be interviewed for selection.


Mr Wrigley was one of two candidates for a single position of senior lecturer in landscape management. Dr Kelly was one of four candidates for three positions as senior lecturers in agricultural systems.


At a meeting on 2 July 2009, candidates were told the proposed selection criteria and composition of the selection panels. They were given time to consider and comment on them but no feedback was received by Massey.


In an email dated 13 July 2009, candidates were told that questions to be asked at the interviews would include certain topics.


There were three selection panels. Each was chaired by Professor Peter Kemp, the head of the Institute. A member of Massey's human resources staff, Kathryn Tulitt, was also on each panel. The other two members of each panel were chosen with regard to the positions they were to deal with. In each case, they were members of Massey's academic staff.


Prior to conducting the interviews, each panel met to discuss the process. They were provided with information about the process, the position and the candidates. This included an interview sheet to complete for each candidate, which contained groups of questions in each of four categories. Panel members were to record the candidates' response to each question and to score them on a scale of 0 to 5. There was also an individual assessment sheet for each candidate. This was in the form of a matrix listing the four categories in which questions had been asked and an additional category of “curriculum vitae”, which was to contain the overall assessment of each panel member of that candidate in each category and comments. It also provided for a “consensus” assessment of the candidate in each category.


For the appointments to each type of position, Professor Kemp also had a sheet on which to record a summary of the ratings of each candidate by the selection panel. This was to be used as a basis for the final selections.


The panel members, to varying degrees, expressed a level of unease about their involvement in the selection process to Professor Kemp. They were colleagues of the candidates or otherwise knew them well and were concerned about being involved in decisions that might lead to job losses. The panel members sought information from Professor Kemp in advance of the interviews about how the comments they made during the selection process would be used by Massey. In particular, they wanted to know whether the unsuccessful candidates would have access to the specific comments each of the selection panel members had made as part of the process. They sought reassurance that this would not occur, as they were concerned about the effect that release of this information could have on their relationships with both the successful and unsuccessful candidates. They thought that there was a real risk that any comments released could easily be taken out of context.


In response to their concerns, Professor Kemp told them that Massey considered they were assisting in an evaluative process that was confidential. As such, Massey did not intend to release the comments made by panel members during the selection process and they were informed that it was not normal Massey process to release such comments. Because the union representing the staff (the Tertiary Education Union) had already indicated to Massey that it would be seeking the information generated in the selection process, Professor Kemp told the panel members to exercise caution in the event the university was required by law to release this material.


The information provided to panel members at the start of the selection process included a memorandum prepared by David Ingram, a Human Resources Advisor. Under the heading “The Selection Process”, it said:

It is essential that you record clear, legible answers on your interview sheets given that you may have to refer back to them or have them disclosed to the candidate if the selection outcome is challenged. You must also be careful what you record to ensure your comments do not show bias.


The interviews were conducted as planned. In each case, the candidates were asked the questions on the interview sheet. Panel members made notes of the candidates' answers and of their own comments. They scored the candidates on each question and those scores were collated onto the individual assessment form for each candidate. The average of those scores for each candidate was then calculated and discussed by the panel until a consensus score for each category was reached. No notes were made of those discussions.


Professor Kemp then transferred the scores for each candidate to the comparison sheet for the position concerned. In each case, the defendants had the lowest scores amongst the candidates for the positions they sought and, on that basis, they were not recommended for appointment.


Following the panel deliberations, Professor Kemp met with Ms Tulitt. They prepared separate feedback for the unsuccessful candidates, the defendants, in the form of a series of bullet points. Those documents were compiled with the aid of notes Professor Kemp had made during the interviews of his impressions of how the candidates responded to the questions.


Professor Kemp and Ms Tulitt then met with each of the defendants and, based on the bullet points, told them why the selection panel had not recommended their appointment.


The meeting with Mr Wrigley took place on 28 July 2009. At this meeting, he was provided with a typed version of the individual assessment sheet showing the scores of the panel members but not identifying which panel member had given which score. The sheet also showed the consensus scores given and the total but no comments were recorded. Mr Wrigley was invited to make comments on the panel's recommendation that he not be appointed and he did so on 4 August 2009.


A similar meeting was held with Dr Kelly on 20 July 2009. He was shown a typed version of his individual assessment form at that meeting but declined to accept a copy until 27 July 2009 when a subsequent meeting was held with him. Dr Kelly responded the following day, 28 July 2009.


The defendants' responses were considered by...

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