20 Mar 2019

Ex-KiwiBuild boss Stephen Barclay loses bid to keep employment dispute details secret

10:46 pm on 20 March 2019

RNZ can now reveal more details of the employment dispute that led to the controversial resignation of Stephen Barclay as the head of the KiwiBuild unit.

Stephen Barclay, head of the KiwiBuild unit

Stephen Barclay Photo: RNZ / Patrick O'Meara

They are contained in an Employment Relations Authority (ERA) determination relating to a case Mr Barclay took last year, arguing that being on suspension was "destroying his reputation and career". However, media were unable to report on it because of a non-publication order.

RNZ - along with TVNZ and Stuff - argued for that to be lifted on the grounds Mr Barclay subsequently made extensive comments in the media relating to his dispute with the Ministry of Housing and Urban Development and chief executive Andrew Crisp.

That determination says the ministry received four "sworn affidavits from senior managers" within the KiwiBuild unit, which set out in detail their complaints and concerns.

The ministry said if proven, the complaints could amount to "serious misconduct".

There was a storm of controversy following his formal resignation in January; he told media at the time he was pursuing a case of constructive dismissal against the ministry.

Mr Barclay has fought hard to keep his name and the details around the dispute that played out before the ERA secret; in his most recent attempt he also argued that if his name was made public, so should the identities of the four managers - however that was rejected by the Authority.

His "application for interim reinstatement to the workplace" was considered by the ERA in December 2018.

The determination was published on the New Zealand Legal Information Institute's website, but the case was reported as XUG v DJV and there was an interim non-publication order placed on it, banning any reporting that would identify the people involved.

The complaints

In response to Mr Barclay's application the ministry told the ERA it had received "a number" of complaints about him that fell into four categories: undermining behaviour, stakeholder engagement, termination of a contractor relationship and criticising/undermining staff.

Three were from managers who reported directly to Mr Barclay, one was from one of his "indirect reports", one from an "external stakeholder and another from a senior manager in another organisation. Mr Barclay continues to challenge the substance of those complaints.

According to the determination the complaints included "specific allegations and alleged retaliatory conduct (which the Authority noted the applicant denied) as well as more generalised concerns about the adverse culture they alleged had developed under the applicant's leadership".

Mr Barclay was sent to work from home while the complaints were being investigated.

The nature of those complaints was disputed by Mr Barclay; he said they related to "style and tone" only and were all issues that could have been raised with him informally.

The determination alludes to a "fifth category" of conduct the ministry would only investigate further depending on the outcome of the other complaints; there were no other details about its nature.

Mr Barclay submitted a written response ahead of a meeting with the ministry, reiterating his view suspension was "unnecessary and damaging to his reputation"; but the ministry remained unconvinced the situation had been resolved.

It wanted to pursue the investigation without him being physically present at the KiwiBuild unit, including "speaking to staff about discrepancies between their statements and the applicant's responses".

In turn Mr Barclay argued suspension could "irreparably" damage his reputation, negatively impact on upon his ability to return to the leadership position within the unit, media attention and coverage and his ability to re-establish relationships with colleagues and stockholders.

He also wanted "damages for the humiliation" caused by the Ministry's actions.

The ministry pushed back saying if he was allowed to come back, even on a temporary basis, that would undermine its ability to manage "potential risk to its staff and organisation" while it was still investigating complaints it believed could potentially amount to "serious misconduct", either individually or all taken together.

The ERA determined Mr Barclay should remain on suspension; among the reasons given were that three complainants had "expressed concern about being around the applicant and had expressed they felt very uncomfortable, would be constantly on edge or guard, and would be waiting for adverse repercussions" if he came back to work.

It found his return would present some "inherent risks" to these complainants because of the power he had over them as the most senior person in the organization.

It believed his continuing suspension would "protect" all involved until the complaints had been properly investigated, and that because the Christmas holidays were coming up, that would alleviate questions about his absence from work.

The ERA rejected Mr Barclay's bid for reinstatement, saying the investigation should be allowed to continue "unimpeded, free from the risk of potential distractions, interference or influence, however unwitting, by the applicant".

Bid to have complainants named

The legal arguments about making the December determination public have continued with strong representations from both sides.

However the Authority stood by its decision to lift the non-publication order in a second determination published on 6 March, with parties given a fortnight to consider an appeal before the media was able to report on the full details.

In a November affidavit, Mr Barclay argued against his name being made public on the grounds the complaints had not been fully investigated before he was suspended, and the Ministry had not reached a final conclusion about the complaints.

The Ministry wanted to meet with him before Christmas to discuss the ongoing investigation into complaints, but he said he was unavailable between 18 December and 14 January.

After a scheduled meeting on 22 January, both parties expected a final Ministry decision, and an "unjustified disadvantage" claim was put on hold accordingly.

In the interim the Ministry also told the ERA it was happy for the non-publication order to be lifted, in part because Mr Barclay was no longer an employee.

But it did want the names and identities of the complainants protected, saying it could otherwise have a "chilling effect" on the public and private sector, and peoples' willingness to lay complaints in the future.

In Mr Barclay's view if there was "public interest" in identifying him, there should be a "similar public interest in disclosing the identities of senior public servants witnesses" whose complaints had led to him losing his job.

It would be "extremely unfair" if his name was published, but not those of the complainants, he asserted.

The ERA decided his name and the details in the December determination should be made public, after a two-week delay to allow time for an appeal, but not the names of the complainants.

It found they had a "reasonable expectation of privacy" as they had made private complaints about Mr Barclay through the appropriate channels.

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