Union ordered to pay $18,700 for compensation, $32,270 for lost remuneration
New Zealand's biggest private sector union has been ordered to pay a sacked union organiser whom the Employment Relations Authority (ERA) said was unjustifiably disadvantaged and dismissed from his role.
Private sector union E tū terminated union organiser Sher Singh in July 2020 for unethical conduct and "inappropriate" communication with an employer who was accused of exploiting a migrant worker.
The case began after Singh, who was also conducting additional work for the Migrant Workers' Association (MWA), got involved in an investigation between the employer (HVF) and an employee accusing her of underpayment of wages.
Singh, who was friends with HVF, organised a meeting at the E tū premises between them with MWA representative Sunny Sehgal, the MWA president, the employee, and the employee's husband.
Singh's role during the meeting was conflicting, as the HVF believed that he was acting on her behalf, while the MWA saw him as a mediator or facilitator. The meeting concluded with HVF paying the employee, an action that she never did.
Harassment accusation
In July 2020, HVF called E tū accusing Singh and Sehgal of harassing her. Her allegations included defamation, breach of privacy, mental and physical harassment, promoting incorrect information and hate speech against her business, as well as providing staff to act against her and causing loss to her business.
HVF also attached copies of messages and emails of her relationship with Singh, which included a WhatsApp conversation where the union organiser allegedly asking HVF to "book a hotel room" to settle matters for her.
Singh argued to E tū that the WhatsApp messages were "fabricated," even showing how such conversations could be faked. He accepted, however, that communications about the meeting had been made through his work phone.
During the investigation, HVF brought the matter to the media and prompted E tū to suspend Singh.
"It is of such a serious and risk to both you and E tū that I believe it is not reasonable for you to continue representing E tū while our investigation continues," E tū told Singh at that time.
Singh later called on Matt McCarten of One Union, who informed E tū that HVF was a "consummate liar," pointing out that the allegations against Singh were part of a campaign from a group of exploiters.
He suggested that E tū could resolve the disputed WhatsApp messages by asking HVF to bring her phone in so the messages could be reviewed.
The union decided not to pursue its investigation on the sexual harassment complaint, but it still fired Singh for "purporting to play three simultaneous roles with an employer."
"You were at once her support person, a mediator, and some kind of adjudicator in an employment issue. Your [sic] then moved into an enforcement role," Singh's dismissal letter read. "This was unethical."
The union also said his communications with HVF were "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. This is serious misconduct."
ERA's decision
Singh raised the matter with the ERA, which ruled in his favour. The authority concluded that the union did not properly explain why it suspended Singh, who was not given enough time to respond.
"It appears that the reason for suspending Mr Singh was because of E tū's concerns about adverse publicity from HVF's complaints being made public," the ERA said in its decision. "I do not accept this as being valid - removing Mr Singh from the workplace was not necessary, rather a statement in response to the allegations would have sufficed."
The ERA was also not satisfied that the union thoroughly investigated the concerns against Singh, including the disputed WhatsApp messages.
"Investigating and resolving the validity of these allegations could have been undertaken reasonably easily," the ERA said.
It added that E tū's position on the harassment allegations was "never expressly proffered in response" despite the accusations making it to the public after HVF's interview with the media.
"The unfortunate situation created by this was that publicly it may have appeared that Mr Singh was dismissed for sexual harassment despite this not being the case," the ERA said.
The authority was also not satisfied that the union properly set out all concerns and information to Singh before firing him. According to the ERA, the union organiser should have been provided with E tū's views and conclusions and should have been told that the sanction being considered was dismissal.
He also should have been given the opportunity to respond to the conclusions made by the union before he was dismissed.
"E tū has failed to show that the process it carried out with Mr Singh that led to his dismissal was justified," the ERA said.
E tū has been ordered to pay Singh $18,700 for compensation and $32,270.56 for lost remuneration. This includes a 15% reduction ordered by the ERA after it also ruled that Singh "did act in a blameworthy way and this behaviour contributed to his grievances."
E tū national secretary Bill Newson told Stuff that it is still considering the judgment and "can't make any comment."
Singh, on his part, called the ruling a "very good outcome."
"Justice is finally served," he told Stuff. "The union movement is like a family to me, and always will be. I've got nothing against the union movement, but they have made a mistake and they've paid for it."
