The Employment Relations Authority last year upheld Sher Singh's claim of unjustified dismissal and disadvantage. (file image) Photo: RNZ / Dan Cook
E tū union has been found by the Employment Court to have unjustifiably suspended and dismissed one of its employees, after a long-running battle involving allegedly inappropriate text messages and an evening meeting.
It must pay Sher Singh $25,000 in compensation, an amount equivalent to 12 months' lost remuneration and a $11,500 contribution to his costs.
The Employment Relations Authority last year upheld Singh's claim of unjustified dismissal and disadvantage.
But the union appealed and Employment Court judge Christina Inglis has now also sided with Singh.
Singh was employed by E tū as a union organiser in 2017. He also had links to the Migrant Workers Association (MWA), which Inglis said the union encouraged.
He met an employer on Facebook who said she was interested in migrant workers' rights. They had a relationship that Inglis noted became more personal and occasionally flirtatious.
In 2018, Singh agreed to attend an evening meeting at the E tū offices, where he acted as her adviser, a mediator for the meeting and an adjudicator.
The woman was engaged in an employment dispute with a worker, supported by MWA, over alleged non-payment of wages and a "premium for employment", which refers to a potential worker paying to secure a role.
Singh suggested that the woman make a payment to the employee to resolve the matter. She never did.
Two years later, when she was subject to other complaints of worker exploitation, the woman contacted E tū claiming that Singh and a colleague had harassed her.
She said she would take her concerns to the media and produced messages that included reference to a hotel room, which Singh denied sending.
E tū assistant national secretary Rachel Mackintosh wrote to Singh, inquiring about his use of offices for non-union business, his support of an employer, travelling to Hamilton to meet her in work hours and his use of phone and email for non-union business.
Singh told the union he had met the woman in respect of a threat she was under and had met her after another, work-related meeting in Hamilton, but acknowledged he should not have used his work phone. But he said the messages she had presented were fabricated.
While the union investigated, the woman went to the media and news reports referred to an E tū union employee "allegedly demanding sexual favours".
This prompted the union to bring forward a meeting scheduled to discuss the issues, and suspended him.
Mackintosh told him her preliminary conclusion was that his actions amounted to serious misconduct, even though the union put aside the contested communication and the allegation of sexual harassment.
Inglis said the union did not do enough to look into the circumstances, or Singh's concerns he was being subjected to a campaign of harassment by employer groups.
Three weeks later, Singh was dismissed. He was told the reasons were that he compromised himself and E tū by holding three roles in the meeting with an employer. He was told his communication with the woman was also inappropriate.
"E tū's credibility as a legitimate trade union is severely compromised by your actions, and the trust and confidence necessary in an employment relationship has been destroyed by your actions," he was told.
Inglis said Singh argued that the dismissal was driven by concerns about reputational risk to the union and a desire to be seen to be responding quickly.
She said the union had not followed proper process for the suspension or dismissal. One person holding three roles in a meeting was consistent with how dispute resolution could be handled in Singh's church, she said, and Singh had no experience of mediation processes under the Employment Relations Act, at that point.
It had also not adequately considered that he was acting in a private capacity rather than a union one.
There had been no attempt to consider alternatives to dismissal or suspension, she said.
"From an early stage E tū's concerns were expressed to be about [the employer's] position and vulnerability; the inference being that Singh had exploited his position as a union official for personal reasons," Inglis said.
"This is hardly surprising given the nature of [the woman's] complaints. But E tū then advised it was not going to proceed with the sexual harassment complaint and was putting aside a number of the purported communications between [the woman] and Singh, because the veracity of many of the messages was in dispute. At that stage, the key concern… was expressed as Singh acting as 'representative, mediator and some sort of adjudicator' at the meeting.
"However, during the course of the hearing before the court it became apparent that E tū's central concern had been that [the woman] was an employer, not an employee, and that Singh's conduct was totally incompatible with its core values. What is notable is that at the time this was never expressly explained to Singh.
"The issue that E tū appeared to be most concerned about (as expressed by witnesses at the hearing) was a lack of insight as to the role of a union organiser and the appropriateness of attending a mediated meeting with an employer. Singh was not attending the meeting in his official capacity; he was attending it in his personal capacity.
"If E tū had made proper inquiries it would have ascertained that he was more likely than not acting as a neutral party at the meeting, addressing a significant plank in their concerns. As I have said, these inquiries appear not to have been made because of external time pressures relating to impending publicity."
Inglis said the dismissal had a serious effect on Singh.
"He was unable to sleep, shut himself off from his partner and family, felt unable to adequately provide for his children, suffered financial hardship ... and was distracted and upset for many months."