The Bach case

April 24th, 2012 at 12:00 pm by David Farrar

The Dom Post editorial:

One what would happen should a State Services Commission employee approach chief executive Iain Rennie, place his or her hands on his head, and inquire what is going on in there.

Till a few days ago conjecture would have been irrelevant. The employee would have been stood down while an inquiry was conducted, then, once the facts were confirmed, dismissed for unacceptable behaviour. The whole process would have taken a matter of days. Some things are simply unacceptable in the workplace. One of them is employees manhandling their bosses; another is bosses manhandling employees.

I’m not sure this is the case. Certainly such behaviour is unacceptable. But one can not sack without warning someone for doing something unacceptable unless it meets a threshold. I suspect an employment tribunal would find in favour of an employee sacked for the above, if it was a one off, and they were otherwise a good employee.

Hence I am not one of those saying should have been sacked. She should have been disciplined, warned and (unlike most employees) is suffering a financial penalty for her misconduct.

Again I am not defending her conduct. I’m just saying that the law applies equally to all employees.

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27 Responses to “The Bach case”

  1. David Garrett (7,278 comments) says:

    If the woman had no extant warnings for anything similar, and they fired her for what has been reported, she would recover a shit load of damages…and if she IS the employer from hell as others have claimed, then Rennie or one of his underlings should have done something about it before now.

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  2. Tom B (55 comments) says:

    I don’t think I agree that the two are interchangeable. A ‘boss’ manhandling a sub-ordinate to my mind is a more serious matter than a sub-ordinate manhandling a boss.

    That said I don’t think there should be very much tolearance at all for any kind of manhandling, but if there is I think it is worse when the boss is the manhandler as there is an established power relationship there.

    Happy to be convinced otherwise.

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  3. rolla_fxgt (311 comments) says:

    Yet again you are wrong david, you only need to look at case history in the authority, and the courts, to see she could have been easily dissmissed, and upheld, providing the SSC had followed the proper steps of having a meeting with her, getting her side of the story, speaking to witnesses, giving her time to respond, suggesting she get legal/moral advice etc.
    Bullying in the workplace/assault is always a dismissable offence, not a warning offence, under any circumstance. Frankly i’m suprised that DOL aren’t looking to charge SSC with failing to provide a safe workplace, or at leas give them a warning over the matter.

    I know you think its too hard to fire people, largely something I agree with, there’s lots of people in jobs that shouldn’t have them, but this is the wrong case to pick, if as I think you are, suggesting perhaps there should be a change to make it clearer on what constitutes a fair level to instantly dismiss someone.

    I know its notoriously hard to get rid of someone in the state sector, given that the unions have basically written the contracts, and the SSC has accepted them, but this is a clear case where not even the unions would have been stupid enough to speak out agianst sacking someone who has manhandled a junior employee.

    She hasn’t suffered much, she still gets some of her bonus (quite how she deserves it is beyond me)

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  4. Viking2 (11,471 comments) says:

    She should have bloody well resigned. o r been pushed. Simply totally unacceptable behavior by any CEO don’t care who and its shows her lack of any integrity that she thought like others before that as a lefty of Clark’s acquaintance she should just ride out the storm. What the fuck is the matter with their thinking.? If she had been a male then assault charges et al would have been the order of the day.
    Hopefully no one will ever employ her again. But the Govt. will.

    The unanswered question is “who sleeps with whom”.

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  5. Paulus (2,627 comments) says:

    Have I not just heard from Stephen Joyce that her Department is to be merged into a new Super Ministry, so perhaps Rennie knew what was happening, and that she will be dis-established shortly.

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  6. flipper (4,065 comments) says:

    Remind me what happened to ( Christine Rankin) the former head of the Ministry of Social Development.

    At the behest of Clark, Cullen, Maharery et al, the Sir Humphreys tried to weedle her out policy grounds. One Humphrey even offered to visit her regularly in Sydney (purpose unstated!) as part of proposed “deal”.

    She had the balls to challenge them on very good grounds. She lost.

    Bach is “dead” from an employment point of view. I hope she is financially well set up. The finding is as good, or better , than a SERIOUS CRIMINAL CONVICTION.

    Some folk tread in quicksand!

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  7. slijmbal (1,236 comments) says:

    I’m with rolla – the issue with firing people is the need to follow process to the letter and that they can basically tell porkies and will be believed by the employment court, which is why it’s often safer/cheaper/easier to buy them out. In this case with witnesses it is a question of following process.

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  8. anonymouse (716 comments) says:

    When you have been earning over 200 K for the last 10 years, and over 300K in the most recent few years it would take a financial penalty of well over 100K to even be noticed…..

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  9. David Garrett (7,278 comments) says:

    rolla: Your opening sentence betrays your bias. But if you are a currently practising employment lawyer please do tell us; that would make your opinion far more interesting.

    While what Bach did is certainly technically assault (and if it was anything more than has been reported you can bet your ass we would have heard about it) it is a country mile from whacking an employee or fellow employee.

    While procedural fairness (which you describe straight out of the textbook) does indeed assume far more importance than it ought to, there must still be substantive justification for a dismissal to be justifiable, and I dont believe there is here. And until you tell us who you are and how you come to your view, that remains mine.

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  10. adze (2,126 comments) says:

    I think if Bach was male in those circumstances, (s)he’d be gone. At any rate, I think I tend to agree with the editorial.

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  11. mikenmild (11,247 comments) says:

    The editorial is bang on. She should have been sacked. Amusingly, there is a letter from one of her fans on the same page as the editorial, claiming that ‘confident, driven women – attractive, astute and forthright as she is – have a habit of being too intimidating for underperforming unionist,s MPs, and others’.

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  12. calendar girl (1,233 comments) says:

    DPF: Your comment does not refer in any way to surrounding circumstances – alleged swearing at employees and an alleged culture of bullying. Did you consider such collateral factors, or just the narrower “hands on head” incident?

    I haven’t heard what “financial penalty” was imposed on Ms Bach. Has it been published? Probably not, despite publication of CEO salaries as a matter of course. Without detail of the financial penalty, we’re denied an opportunity to judge the magnitude or appropriateness of the “punishment” for what Mr Rennie found was “inappropriate and unacceptable” behaviour.

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  13. lastmanstanding (1,297 comments) says:

    From what I see Bach is a typical bullying feminazi who gest away with outrageous behaviour that no male would because those above them in this case Rennie are scared witless to take them on.

    Rennie is weak as dish water scared of his own shadow and terrified of anyone like Bach.

    Alas the public service has become riddled with Bachs all full of bull shit and bullying their way to the top

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  14. slijmbal (1,236 comments) says:

    @DG – have to laugh everyone seems to attack you – rolla – “yet again you are wrong …..” rather than debating the point. Says more about them than you.

    Had to sack a senior employee and as such brought in the employment lawyers to assist and make sure it didn’t get too expensive. In this case the person wouldn’t walk and wanted too much to be paid off (unusual in senior employees I hasten to add – they normally have enough sense to walk on agreed terms).

    The advice from the lawyer was that the courts do have common sense in that a senior position is held to a higher standard because of their role and that poor personal behaviour affecting the company’s standing in the marketplace was grounds for dismisall. This employee told a customer to f*** off (not the 1st time). He got similar advice from his lawyer and a deal was agreed.

    This seems similar but they probably need > 1 example of poor behaviour to clinch it.

    Though the real question is why this CEO wasn’t quietly spoken to and hasn’t walked – shows poor judgement.

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  15. rolla_fxgt (311 comments) says:

    David Garrett (1,476) Says:
    April 24th, 2012 at 12:33 pm

    rolla: Your opening sentence betrays your bias. But if you are a currently practising employment lawyer please do tell us; that would make your opinion far more interesting.

    No just a lowly HR guy, would rather be dead or a Labour voter(pretty much the same thing) than an employment lawyer, can’t think of anything worse!
    Just to clear the confusion, I was talking about DPF, when I said david, yet again you are wrong…There were no replys on the topic when I posted originally.

    I’m yet to read a case where the courts have said its okay to push someone around, and ordered reinstatement, or other remedy (where proper procedure has been followed).
    If you can point me to one, then I’ll accept your opinion.

    From what I’ve read it doesn’t seem either party has disagreed the events took place, as have been portrayed, just that it was out of character, and that perhaps she felt remorse for it (which would go some way towards lessening the seriousness of the event), but in my humble opinion, she still should have been dismissed, after careful consideration of all the facts. After all with the recent law change, as long as you can argue its what a good employer could have done, you should be home and hosed. Primarily arguing loss of faith in her ability to keep staff safe, and perhaps loss of trust in her abilities to manage staff well and keep their morale up.

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  16. insider (1,028 comments) says:

    Manhandled seems an over the top description of what happened. It seems more like a patronising display that a parent would give to a child than an aggressive and threatening act. The recipient probably felt demeaned more than assaulted.

    Unprofessional? Yes. Sackable offence? doesn’t seem like it.

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  17. mikenmild (11,247 comments) says:

    The incident was certainly not out of character for this individual.
    Interestingly, I doubt she will suffer much even from the (token) financial penalty. Her job will be disestablished when the new super ministry is established so losing (part of!) her bonus will probably pale into insignificance alongside the generous severance package.

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  18. Leaping Jimmy (16,457 comments) says:

    Unprofessional? Yes. Sackable offence? doesn’t seem like it.

    If it’s not sackable then it should be. This is a CEO we are talking about here. This is someone who is expected to keep cool in adversity, who sets examples, etc etc. This is not someone who should be permitted, officially, to act like a petulant child when faced with a situation where something isn’t going quite their way. Which is how she behaved. How dare anyone do what she did in the context of a workplace. Who the fuck does she think she is? Tell me parents, if you had a babysitter and you found out that’s what your babysitter did to your child while you were out, would you think that would be acceptable? I hope not. And if its not acceptable to a child then why would it be acceptable for one adult to do that to another adult, under any circumstance, let alone as a CEO to a subordinate, FFS.

    Tell you what if it was a junior manager it would have been instant dismissal no question, absolutely guaranteed. Well, not now the opposite precedent’s been set, at least in the public service. This is going to have far-reaching ramifications, tell you what.

    And that’s the standard which should have been applied when assessing Bach’s behaviour. How and why Rennie didn’t see fit to apply that is a very pertinent question which the media should be seeking to put to him. It’s a lot more important than the gay bar issue, which is instead what I predict the media is focusing on right now.

    As mm and others have said, in addition to all of this: “The incident was certainly not out of character for this individual.”

    If that doesn’t raise red flags and clanging alarm bells then FFS, what, pray tell, does.

    I would be extremely interested to know whether the fact she was a women was a factor in Rennie’s decision. I would not be at all surprised if Rennie would have been thinking, gee, we don’t have a lot of lady CEOs, if I get rid of this one, it’ll look really bad. It’s a bloody shame such thinking would never have been documented, but I bet it would have been orally discussed by Rennie and others at SSC. It would be great to get their testimony in court, under oath, on that.

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  19. insider (1,028 comments) says:

    @ milken

    She is on a one year contract from last year. I doubt the severence will be that great. I know people who have left her employ because of her behaviours – it seems well known around town. How she got the one year extension is a good question. Probably they knew what was coming and better the devil you know.

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  20. john.bt (170 comments) says:

    I recall seeing a situation vacant ad in the Dompost a few years ago looking for women whose only job was to promote other women into positions of authority in the gummint. Turned out that this is common practice in gummint but it is OK because the same policy applies to other sectors of workers (as long as they are not white, heterosexual and male). Just saying.

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  21. lastmanstanding (1,297 comments) says:

    Bye Bye Bach Joyce has just annouced new Super Ministry taking in Bachs one. Shes a gonna thats why no action was taken. no need to when shes gonna be disestablished

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  22. 3-coil (1,220 comments) says:

    “But one can not sack without warning someone for doing something unacceptable unless it meets a threshold. I suspect an employment tribunal would find in favour of an employee sacked for the above, if it was a one off, and they were otherwise a good employee.”

    Does anyone know: was Alister Thompson given a warning before being sacked?

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  23. David Garrett (7,278 comments) says:

    rolla: thanks for that clarification…to be honest I had forgotten about the “what a reasonable employer COULD do…” modification to the “reasonable employer” test…which is pretty poor, since I was still in parliament when it was passed!

    On reflection, and reading others’ comments I think you might be right…person in a very senior position etc. But I still dont think it would be a slam dunk. As you will know, it would be a complete waste of time – and in fact counterproductive – for them to now try and raise past instances of alleged misconduct which they did nothing about at the time.

    You and others are also right though in that it is unusual for an employee at this level to allow it to be “all hung out”; perhaps she just wanted too much to walk. That happens too.

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  24. Chris2 (766 comments) says:

    It’s hard to escape the view that if you are a departmental head then your misconduct is treated more leniently than if you are a regular public servant.

    Bach – no bonus (presumably) but salary unaffected

    Former Police Commissoner Peter Doone – interfered with a Constable wanting to breath test his partner.

    Immigration CEO Mary-Ann Thompson – lied about having a PhD for 18 years (fined a miniscule $10,000)
    State Services Commissioner Michael Wintringham – informed about concerns that Thompson did not have a PhD, did nothing.

    Leith Comer – Ministry of maori affairs – took his wife with him to attend concerts and fashion shows at the expense of the taxpayer. Still in his job.

    What others have I missed??????

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  25. aquataur (56 comments) says:

    FWIW

    Rumours are that KB held the head of the junior staffer and said – what the fuck’s going on between the shit you’ve got in here

    Mty view – she should have resigned or been fired

    the SSC and Mr Rennie are weak kneed pussies and should go as well

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  26. Monty (978 comments) says:

    Wasn’t Bach an appointment of the Clark era. Enough said. She is an aloof GM, does not communicate with her staff in the DBH, plays the political game very well, with her bosses, but is extremely disliked by all others.

    Best she now becomes a contractor.

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  27. Mark (1,488 comments) says:

    David I could not disagree more strongly. If able CEO had manhandled a staff member it would have been all over. Where I think you provide too much latitude is that you are treating Bach as an employee not a CEO of whom a much sterner test of acceptable behaviour must be applied. I would have dismissed her and I would have been reasonably confident in the employment court if the reported facts are correct.

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