A Ministry of Social Development employee was dismissed after staging a “sit in” in her manager’s office.

The employee was employed at MSD’s Youth Justice Residence Centre in Palmerston North, as a residential night attendant.

The employee’s sit in was motivated by concerns over the treatment of youth at the residence. Her motivation was idealistic and was at a time when there has been a lot of criticism about the treatment of young people in centres like this. About 30 young people lived there. The residence had about 120 staff.

The employee was dismissed because she refused to leave the residence manager’s office when asked to, repeatedly. Ultimately, she was arrested and escorted from the building by the police and subsequently was dismissed. She claimed her dismissal was unjustified.

The employee’s role included making regular checks on (generally sleeping) young people during the night.

The employee was a Public Service Association (PSA) union delegate.

She was concerned about how incidents at the residence were reported and handled. She regularly reported her concerns to management.

She later alleged that her expression of these concerns was behind her eventual dismissal.

However, “the straw that broke the camel’s back” for the employee was “the restraint incident”. A young person had received a head injury from an incident in which there had been a use of force restraint. Although she was not there, the employee had concerns over the way the matter was handled, based on reports.

She raised the restraint incident with the manager in his office. She said she was concerned that the use of force was excessive.

The manager’s explanation did not satisfy her.

He told her of other options she had available to take her concerns further. The manager asked the employee to leave the office. The employee initially got up to go but changed her mind and said she was not going anywhere and that she was staging a sit in.

She sat down and refused to leave the manager’s office. Various other people were approached to try to persuade the employee to leave. They were unsuccessful. Finally, the manager told her yet again to leave and told her he considered his request to be a lawful and reasonable instruction.

The employee said she was not moving and that the employer would need to restrain her or call the police.

By then she had been in the manager’s office for almost three hours. He advised that he would be leaving to call the police and that she would be moved offsite and likely trespassed. The employee told the manager to “go for it”.

The police arrived 15 minutes later and endeavoured to persuade the employee to leave. When she refused she was arrested for trespass and forcibly removed from the premises and placed in a police car.

An employment investigation and then disciplinary process followed. As the residence manager was involved in the relevant events, an outside person was brought in to carry out an investigation and a second outside person was appointed as decision-maker. The employee was represented by the PSA during the investigation and the subsequent disciplinary process.

Later the Office of the Children’s Commissioner concluded that the restraint that was carried out was in accordance with the ministry’s policies and procedures and that there was no intentional harm or overzealous use of force by residence staff.

MSD followed a careful and thorough process with both its employment and disciplinary investigations.

The employer considered matters that were important to it in determining whether serious misconduct had occurred and, if so, what the sanction should be. Those matters included that the incident occurred over several hours and that the residence manager and other staff were not available during that time for other matters. Having the police attend to manage the situation compromised the integrity of what the residence was trying to achieve through role modelling and working with the residents to assist them to make good decisions in their lives.

The employer determined that the employee failed to follow a lawful and reasonable instruction. She contravened MSD’s code of conduct. MSD considered the disruption and stress the employee caused all involved. MSD concluded that the employee’s behaviour amounted to serious misconduct. It then looked at what sanction should apply.

The employee maintained she took the action she did out of concern for the young people resulting from restraints. That was despite the availability of other avenues to pursue that concern. The ministry decided termination on notice was the appropriate outcome.

The Employment Court found the dismissal to be justified. While the employee’s concerns were acknowledged, MSD was entitled to focus on the sit in itself and the reasons given by the employee at the time.

The lesson to take from this case is that care should be taken as to how you address concerns with your employer’s practices. If you have concerns about the way your employer is conducting its business taking unilateral, confrontational action is foolish in the extreme. In this case there were plenty of alternative options open to the employee. Instead, she took matters into her own hands, acted unilaterally, and lost her job.