Submissions File number 5294885
Who is/ are the respondent s
I. Paul Evans-McLeod was employed by Telecom – the first respondents - under a contract document called the “expired collective”, second respondent is Bridgette Dalzell, third respondent is Michelle Young and fourth respondent is Shaun Hoult who were my direct reports and act for the first respondent as supported by paragraphs 4 (a) (b) (c) in the statement of reply supplied by their counsel John Rooney acting on their behalf
Why the mediated settlement should be set aside:
I am disputing the possible legality/illegality of the actions that preceded and lead to me being forced to the mediation and being forced to resign under duress (constructive dismissal).
I am asking the employment relations authority for a ruling on these actions.
However If this ruling is returned in my favor then it is my contention that the effect of this would negate the effects of the mediated settlement and paragraphs (e and f) of the statement of reply as it was achieved by illegal means.
This would eliminate the requirement for including the” 90 day issue” required for meeting Friday 28 May.
2. I therefore refute their claim paragraph 4 (d) of their statement of reply
‘’
that the second third and fourth respondents were, at all times, acting in the proper
performance of their duties with the first respondent “
3. It is my contention that the respondents were “not acting in the proper performance of their duties” in that they failed to offer me, as required under the Employment Relations Act, “the same terms of employment and conditions of work as other employees with the same or similar qualifications, experience or skills working in the same or similar circumstances “
4. Furthermore I suffered dismissal, discrimination, humiliation and detriment by the employer and their representatives (the respondents) in circumstances in which other employees doing the same kind of work are, where or would be treated in the same way. As required under the Employment Relations Act
5. It is also my contention with reference to paragraph 4 (d) that with the realization that the second respondent Brigitte Dalzell was reading emails between myself and my “lawyer” in that
she failed to offer me the required information under the provisions and principals of the Privacy Act 1993 and that this failure of process was to my detriment .
6. I have requested via their counsel John Rooney, a full account from the respondent of her actions, dates, and times of access. Justification for each instances and all other relevant information relating to the access such as meeting notes conversation notes ,emails dairy notes correspondence to from related parties including human resources legal opinions and others7. Furthermore whenever
I enquired of the third and forth respondents, namely Michelle Young and Shaun Hoult during various meetings, as the legalities of micro-managing (openly admitted by same on various occasions) at meetings held 230609 140709) especially when compared and highlighted against the requirements of the Health and Safety Amendment Act 2002 as they would seem to contradict each other so I seek a ruling on:
(a) Which has precedence - micro managing or the Health and Safety Amendment Act 2002?
(b) Is the act of micro-managing illegal under the Health and Safety Amendment Act 2002?
They failed to provide any answer at all, in fact their response was a declaration that
a “Final Written Warning” would be issued, which had the required effect of forcing me to the mediation - so again they failed in the proper performance of their duties. I therefore also seek a ruling as to
the legality of this practice, policy and process which put me at severe disadvantage and under extreme stress.
8. I also contend that they failed in their duties by neglecting to take “all practicable” steps as required by law (The Health and Safety in Employment Act)section 2 A by ceasing the micro-managing in spite of them having received two medical letters from my Doctor indicating that the micro-managing was detrimental to my health and should be held accountable for these inactions.
All practicable steps is a key concept in the act .the act places the a duty on employers and people in control of work places to take all reasonably practicable steps in circumstances the know or ought reasonably you only have to know about to ensure their own safety and that of others
A step is practicable if it is possible or capable of being done. 'Reasonably ‘means that you don't have to do everything humanly possible; you only have to do what a reasonable and prudent person would do in the same situation you have to take into account various factors which may or may not take into account
They failed to have regard
The nature and severity of the harm that may be suffered if the result is not achieved: and
The current state of knowledge about the likelihood that harm of that nature and severity will be suffered if the result is not achieved: and;
The current state of knowledge about harm of that nature: and
4 the current state of knowledge about the means available to achieve the result and about the likely efficacy of each of those means
Micro-managing, coupled with their subsequent refusal to engage in meaningful dialogue, and failure to address both my and my Doctor’s concerns, was effectively designed to control, alienate and disrespect me, formed a stress induced disempowerment triangle which impacted on all measurements despite the best efforts from my self to achieve the requirements
- their actions caused their beliefs to become self fulfilling. As they knew it would
9. Why was removing the micro-managing not considered a practicable step as they are also required to under the Human Rights Act? To
. “
Take into account life circumstances which may impact on work performance.”
The respondents were fully aware that
I am a diagnosed manic-depressive having suffered three successive nervous-breakdowns over the course of my life and received approximately 18 doses of electro convulsive therapy (ECT) and that I was on medication for same and had recently suffered a heart attack. These issues were discussed at the initial meeting when I was advised to seek counseling via the Employee Assistance Program which I availed myself of and attended numerous times as the stress over came me .
On the advice of my support person, I also provided them with a list of the life circumstances which I had/was dealing with in my personal life at that time which were numerous
Beyond receipt of the above they persisted to hold meeting after meeting, creating and causing more distress which was also obviously observed by the respondents, as on occasions they advised me to take the rest of the day off, however they made a conscious decision to continue the micro managing process.
In fact after one particular meeting I suffered severe chest pain as I made my way to the car which required a visit to the Doctor, an ECG, an hour on oxygen and two days rest. Subsequent to that meeting I was issued with a Final Written Warning.
I put it to the authority that the respondents were fully aware of the distress that their actions were causing and deliberately exacerbated same to their advantage completely contrary to my rights under law. This was done in various ways including
Corporate bullying this is where the employer abuses employees with impunity knowing that the law is weak and jobs are scarce. Dismissing anyone who looks like having a stress breakdown as it’s cheaper to pay the costs of unfair dismissal at Employment Relations Authority than risk facing a personal injury claim for stress breakdown
They where fully aware as I had filed the required documents refer:
“Notification of circumstances of Incident/Injury - Accident or Serious Harm” form section 10 - Mental Stress” filed with the Department of Labor and Telecoms on site safety officer Sandra Cleaver 300509-140709
Also
“Investigation form to be used to investigate work related accidents .injuries incidents –including near miss incidents filed with the Department of Labor and Telecoms on site safety officer Sandra Cleaver 300509-140709
Also
“‘Injury coversheet that must be copied to the health and safety office injury report and investigation form “referred to above file with the Department of Labor and Telecoms on site safety officer Sandra Cleaver 300509-140709
Also “‘Hazard, Risk, or potential hazard identification and control management form”’ filed with the Department of Labor and Telecoms on site safety officer Sandra Cleaver 300509-140709
Where the employer deems any employee suffering from stress as weak and inadequate whilst aggressively ignoring and denying the cause of stress (bad management and bullying)
Regulation bullying this is where management forces their target to comply with rules, regulations, procedures or laws regardless of their appropriateness, applicability or necessity. Regardless of the fact that the same level of compliance is not required by other employees
Legal bullying –this is the bringing of a vexatious legal action to control and punish a person - is one of the nastiest forms of bullying. Hence my forced appearance at mediation and my constructive dismissal after 39 years 3 months of loyal service with hardly a blemish on my record
10.
Constructive analysis of all meeting notes, once received, would show a blatant disregard to addressing any of the issues raised by myself and my support person, indicating a premeditated process was in place to achieve their own predetermined out come - the mediation - which was signed under duress as I was placed in an untenable position by the offers presented due to the financial stresses and requirements of my life out side work.
11.
This, in my opinion, gives credence to my contention that this was predetermined for a constructive dismissal , as their action or inactions show that my ousting was premeditated workplace bullying by micro-management (by their own admission) disguised as performance management.
“If an employer puts pressure (directly or indirectly) on an employee to resign, or makes the situation at work intolerable for the employee, it may be a forced resignation or "constructive dismissal".
A constructive dismissal may be where, for example, one or more of the following occurs:
• the employer has followed a course of conduct deliberately aimed at coercing the employee to resign
•
the employee is told to choose between resigning or being dismissed
• There has been a breach of duty by the employer (i.e. a breach of the agreement or of fair and reasonable treatment) such that the employee feels he or she cannot remain in the job.
12. Their prolonged and aggressive actions lead to the ultimate destination of mediation, hence dismissal, gained by my resignation signed under duress, could also give credence to a failure to treat me, the employee, in good faith under the Employment Relations Act 2000 4 1 (a) (b) (I)(ii).
“Under the Employment Relations Act 2000 the parties to an employment relationship are required to act in good faith. This means that the parties must not mislead each other, either directly or indirectly. Good faith means more than mutual trust; it requires active, constructive engagement.”
The engagement I suffered I feel was destructive in many respects.
As the company is required to:
“Ensure that employees whose work performance is poor are counseled and given a chance to respond and improve” this forms part of the Human Rights Act
As micro-managing is a well known form of workplace bullying I seek an explanation as to how it can be construed a chance to respond and improve especially when they blatantly disregarded any thing I had say and where dismissive of my efforts to improve and constantly reiterated the impossible target they had set me
13.While I was not party to the discussions, the fact that investigations by the Department of Labour represented by Dr David Prestage could not find anything untoward , this despite the fact the that there are some glaring deficiencies in their process( they the appeared to have had no hcp in place specific to stress )and the admission on more than one occasion that they were practicing micro-management on me, leading to my lodging a complaint via “Notification of circumstances of Incident/Injury - Accident or Serious Harm” section 10 - Mental Stress, report which should be on file, along with others referred to above invites investigation as Para 235 obstruction (1) (a) (b).
14. I put it to the Authority that what was being considered in the first personal grievance was the preliminary question of what is effectively accord and satisfaction in an effort to negotiate a settlement.
That was the only matter before the Authority and the only matter which it determined.
The Authority did not embark on a full investigation of the Employment relationship problems as alleged in the statement of problem.
Thus a failure to address and consider these issues at this first meeting and accept the mediated settlement as full and final, allows Telecom to effectively and deliberately disenfranchise me of my basic human and legal rights under the referred to acts. I am not a lawyer but natural justice says this should not be allowed to happen
15.
I put in summary to the Authority that in their attempt to oust me from the Company they effectively ignored my rights under various employment laws and acts and I was constructively dismissed . Coupled with the fact it culminated in my being physically, mentally and emotionally exhausted, their actions were extremely unfair.
16
I tried to stand up against the bullying and refused to join in, but found in my case that I was bullied, harassed, victimized and scapegoated until my health is so severely impaired that I was will on the way to having a stress breakdown (my medical support primary concern was which would occur first another heart attack or a nervous stress induced break down)
This was done in a number of ways and receipt of all meeting notes and careful analysis will go a long way to proving my contention
At times I was
• constantly criticized and subjected to destructive criticism (often euphemistically called constructive criticism, which is an oxymoron) - explanations and proof of achievement are ridiculed, overruled, dismissed or ignored
• forever subject to nit-picking and trivial fault-finding (the triviality was the giveaway)
• undermined, especially in front of others; false concerns are raised, or doubts are expressed over a person's performance or standard of work - however, the doubts lack substantive and quantifiable evidence,( I was told all others where achieving the standard when the truth was Terri Wilson’s survey found otherwise )
• overruled, ignored, sidelined, marginalized, ostracized
• singled out and treated differently (for example everyone else can have access to the web during work hours but if it was me it's a disciplinary offence)
• set unrealistic goals and deadlines which are unachievable I was required to achieve 100% of all requirement 100% of the time but their own survey by call center manager showed none on site where achieving same
•
denied support by my manager( as he abandoned me to save his own job) and thus found myself working in a management vacuum
• subject to excessive monitoring, supervision, micro-management, recording, snooping etc
• the subject of written complaints by other members of staff (most of whom may have been coerced into fabricating allegations - the complaints are trivial(, complaints by Terri Wilson call center manager and Owen Farrar-Purcell lead trainer )
• are invited to "informal" meetings which turn out to be disciplinary hearings
• encouraged to feel guilty, and to believe I was always the one at fault I was constantly told that everybody else was achieving to the standard they required of me but on becoming aware of the survey done by Terri Wilson was denied access due to” privacy issues”
•
subjected to unwarranted and unjustified verbal or written warnings I was held to account for saying “bugger” on a call yet the ceo Paul Reynolds in a interview on close up recently says ‘shit happens” and “people were taking the piss” on national television
•
facing unjustified disciplinary action on trivial or specious or false charges I complained of inadequate training with regard to xt launch as did the trainer and most of the team I was the only one disciplined
• facing dismissal on fabricated charges or flimsy excuses, often using a trivial incident from months or years previously these formed part of the initial complaint
• coerced into reluctant resignation,
• Denial of the right to earn my livelihood including preventing me getting another job, usually with a bad or misleading reference. In spite of once being the top seller on site for three years in a row, have failed, to attain any jobs at various telecom retail shops although it is illegal and it will be firmly denied
It is a well known fact that Telecom holds a list of those that will never work in telecom or its environs again or associated companies, .sub contractors thus limiting my opportunities in the area of my expertise and experience
I believe that I was selected to be bullied as I fulfilled some of the following criteria:
• being good at my job,
• being popular with people (colleagues, customers, clients)
• More than anything else, the manager feared exposure of his inadequacy and incompetence; my presence, popularity and competence unknowingly and unwittingly fueled that fear as the manager was hardly ever there I became the defacto team leader in his absences
• A survey done annually by the staff he controlled placed him at bottom of all team leaders on site .approx 24/24 I believe his comment on receiving same was “I paid the price for being absent all the time”
• At times being the expert and the person to whom others come for advice, either personal or professional
• I had a well-defined set of values which I was unwilling to compromise
• I was known for strong sense of integrity I refused to join any established clique
• I always showed independence of thought or deed
• My refusing to become a corporate clone and drone I was always questioning and asking for answers in fact prior to the at launch demanding answers as we where woefully underprepared especially with regard to the technical details
• Being too old and too expensive I was on a very old contract called “the expired collective” I was working ten hour days four days a week incurring penal rates at double time and time and half
• Thus the only ones earning more than me would have been possibly the national manager at 57 years old I had accumulated 39years 3 months service and with the current trend of out sourcing overseas and the possibility of moving to a new purpose build campus currently under construction in Auckland there may or may not have been a considerable redundancy package on the horizon
On reflection some of the events that may have triggered this event could have been
(a) A new manager was appointed
(b)My refusing to obey an order which violates rules, regulations, procedures, or is illegal
.I wasn’t doing my job after returning to work from illness (heart attack) was taken aside and dressed down, for lack of performance. All issues where addressed and improvement shown and acknowledged.
However in spite of being warned by my immediate manager not to readdress the same issues ,as he felt they had been resolved to everyone’s satisfaction.
The call center manager Michelle Young decided to readdress same and upon my subsequent refusal to re-engaged in the discussion, passed me on to the national manager Bridgette Dalzell where the same discussion and out come ensured as I expressed it was perhaps illegal to admonished for the same misdemeanor three times
The micromanagement started with in fourteen days of this meeting.
This coupled with standing up for a several colleagues who where being bullied, of three people I had supported I had “won” two of the cases which unfortunately showed the incompetence of one of the site mangers So in a de-facto way I was undertaking the duties and role of a trade union representative and winning which in hindsight was not appreciated by management
I believe that I was displaying qualities that management where finding it increasingly hard to deal with
• My competence
• My intelligence and intellect
• My honesty and integrity
• I was trustworthy, trusting, conscientious, loyal and dependable in 12 years in current role I had accumulated 90 days sick leave
• I had well-developed integrity which I was unwilling to compromise
• I was always willing to go that extra mile and expected others to do the same
• I was successful, tenacious, determined, courageous, having fortitude
• I had a sense of humour, including displays of quick-wittedness
• I was imaginative, creative, innovative idealistic, optimistic, always working for improvement and betterment of self, family, the employer, my constant questioning of proper or better process, which won national recognition but the chagrin of my management
• I had the ability to master new skills ability, to think long term and to see the bigger picture
• I had a sensitivity to a set of values to be cherished including empathy, concern for others, respect, tolerance etc)
• I was slow to anger
• I was helpful, always willing to share knowledge and my 39 years of experience
• giving and selfless (staff on my leaving card commented I was the kindest person they knew )
• I had difficulty saying no to helping and mentoring others
• I possessed a strong sense of honour
• I was irrepressible, wanting to tackle and correct injustice wherever you see it
• I possessed a strong forgiving streak coupled with a desire to always think well of others
• I, m incorruptible, having high moral standards which I am unwilling to compromise
• I’m unwilling to lower standards having a strong well-defined set of values which I’m
• unwilling to compromise or abandon hence this action
•
• I have high expectations of those in authority and a dislike of incompetent people in positions of power who abuse power
•
• However I am quick to apologize when accused, even if not guilty (this is a useful technique for defusing an aggressive customer ) I posses a strong sense of fair play and a desire to always be reasonable
• I have high coping skills under stress, especially when the injury to health becomes apparent perhaps on this occasion to my detriment
• I posses a tendency to internalize anger rather than express it
The sequence of events was as follows
• I was selected using the some of the criteria above, then bullied for 8 1/ 2months
•
• Eventually, I asserted my right not to be bullied, by filing a complaint/enquiry with Telecom National Manager Health and Safety .the department of labour and verbally in a meeting to HR representative Iain Galloway, their response final writing warning completely ignoring my concerns
• The personnel department are/where complicit in the micro-managing by their own admission thus acting contrary to my best interests and that of their employer
• They suddenly realized they had perhaps acted contrary to their own best interests and perhaps illegally and may have thus incurred the possibility of a large liability against the employer and put their own employment in jeopardy due to their own incompetence
• The employer now realizes that they have sided with the wrong people, but they don’t want to admit that because to do so may incur liability spoken of
• If legal action is taken, employers will have go to increasingly greater lengths to keep things quiet, this is usually by offering a small out-of-court settlement with a comprehensive gagging clause
•
this was the subsequent out come they constructively dismissed me at a time when my health was completely shattered and I was on high dose’s of medication aimed at preventing either a fatal heart attack or a complete mental break down clearly not functioning at my best and my marriage was collapsing under the stress
• such was state I was in, I advised my twin brother that if a fatal event happened to pursue Telecom for damages
It was only after a relatively long period of rest, rehabilitation and counseling and once the medically induced fog had cleared and I regained the ability to think clearly and logically that it became clear to me that Telecom had effectively and deliberately disenfranchised me of my basic human and legal rights taking full advantage of my ill health caused by their own transgressions
Hence they where fully aware that their actions/inactions during the whole process failed to meet the standard required and where hopeful that my forced resignation would be the end of it and their inadequacies would remain undiscovered to be perpetrated on another unsuspecting employee
Current telecom participants
Bridgette Dalzell current head of outsourced customer care at telecom New Zealand whom is Michelle Young's direct report at time of incident
Michelle Young call center manager Hamilton call center, whom is Shaun Hoults direct report at time of incidents
Shaun Hoult team manager weekend team Sat-Tues Hamilton
Iain Galloway HR representative spends a lot of time in Hamilton
