The Unfolding Stephen Barclay-KiwiBuild saga – what is constructive dismissal and should MHUD have issued a public statement about the employment dispute?
The Stephen Barclay-KiwiBuild saga has been rapidly unfolding over the past 24 hours, and it has left many asking questions. The most significant question being should Ministry of Housing and Urban Development (MHUD) have issued a public statement saying there is an employment dispute and giving some of the details of that dispute.
What we know so far
On 18 January 2019, the Chief Executive of MHUD announced Mr Barclay had resigned from his role as Head of Kiwibuild with immediate effect.
In the days following this initial media release, MHUD and Mr Barclay issued statements. These statements include confirmation by MHUD that an “employment investigation” into Mr Barclay’s leadership behaviour and dealings with other staff and stakeholders was underway at the time he resigned. MHUD, in their media release of 28 January 2019, confirmed Mr Barclay has not received an exit payment or payment in lieu of notice upon resigning.
In his response issued on 28 January 2019, Mr Barclay stated he felt MHUD’s statement breached his privacy in respect of the details around the resignation. He says MHUD made his position “untenable”, leading him to “resign in his and the Kiwibuild programme’s best interests”. He is currently pursuing a case of constructive dismissal.
What is constructive dismissal?
Constructive dismissal occurs in cases where the employer does not expressly terminate the employment agreement but the employee is left in a position where they have no choice but to resign. This will often be for two reasons:
- they have been given an ultimatum between resigning and being dismissed; or
- the conduct of the employer forces them to resign.
Is there a case of constructive dismissal here? To determine this, an understanding of the terms of the employment agreement is needed to establish whether the employer breached these terms in a manner serious enough to justify the resignation of the employee. Additionally, further information on the series of events that took place is needed.
At the moment we have little in respect to the actual facts of this case and cannot comment on whether a constructive dismissal case could be established. Factors weighing towards a case of constructive dismissal include the alleged two-month suspension period and whether MHUD sought out any of the alleged complaints against Mr Barclay (for example an organisation going on a witch hunt trying to find something that would entitle them to commence a disciplinary process).
Should the Minister and MHUD have told the public there was an employment dispute and some of the details of that?
Mr Barclay has a right to privacy and details of his employment are personal information. Therefore MHUD has an obligation to protect his private information, including information about the employment relationship. To publicly confirm there is an employment dispute and provide some of the details leading to the dispute is a breach of that right to privacy and other employment obligations.
MHUD have publicly released information that should be between an employee and employer (even if that relationship has now ended) and the disclosure is a breach of principle 11 of the Privacy Principles under the Privacy Act. Principle 11 put limits on when personal information can be disclosed.
MHUD and the Minister have overstepped which now puts them in a position where they are not only having to address an employment dispute but potentially a Human Rights Review Tribunal claim for breach of privacy.
Where to from here?
We will continue to follow this story as more details emerge but it appears likely that unless the parties can resolve matters between themselves either the Employment Relations Authority or the Human Rights Review Tribunal will be hearing the matter in due course.