Findings of Employment Matter Re Katrina Bach
Friday 20 April 2012
Findings of Employment Matter relating to the Chief Executive of the Department of Building and Housing
State Services Commissioner Iain Rennie today released his findings in an employment matter relating to Ms Katrina Bach, Chief Executive of the Department of Building and Housing.
“I am satisfied that the independent investigation by a lawyer, the independent decision-making undertaken by another Public Service chief executive, and the subsequent discussions between myself and the Chief Executive have enabled the issues in this matter to be fairly and thoroughly canvassed.”
Mr Rennie said that, “Ms Bach is a long-serving public servant who has demonstrated a high level of energy and commitment to delivery in all her roles throughout her career. For example, she and her department have responded with urgency and vigour to the challenges of the Christchurch earthquakes. I have taken into account the very significant workload pressures that the Department and Ms Bach, in particular, were under at the time of the incidents under review, including dealing with a large number of issues arising during the National Emergency following the 22 February earthquake. I have also considered the personal circumstances of the Chief Executive at the time of the incidents. It is clear to me that this context is an important consideration in viewing Ms Bach’s actions.
“While having due regard to the situation faced by the Chief Executive, I have concluded that the Chief Executive breached the Department’s Code of Conduct.
“I have also found that the Department failed to deal adequately with the matter once it was bought to the attention of relevant staff. I understand the Department has subsequently reviewed its policies and practices for handling staff complaints. The Commission will work with the Department to assure itself of the improvements that the Department has made to its policies and practices.”
“Ms Bach has received a warning and I have advised her that there would be a monetary consequence for her through the operation of the annual performance management system.
“The Chief Executive acknowledges that she acted inappropriately at the time and accepts her behaviour did not meet the expectations of a Public Service employer.
“I am releasing a summary of events relating to this matter. This is unusual in the case of an employment matter, but there has been public comment over a number of months. Given the resulting public interest, I am seeking to provide an appropriate degree of transparency around this matter to give confidence that allegations of inappropriate workplace conduct in the Public Service are fairly and thoroughly investigated and that there is an appropriate accountability for lapses from the expected standards of behaviour.
“This process has taken longer than I would have wished. It was necessary to wait for completion of the investigation into the staff member’s personal grievance before entering an employment process with Ms Bach. It was important for me to follow what I considered to be a fair process and to thoroughly examine all of the matters covered during my discussions with Ms Bach.”
Friday 20 April 2012
Summary of events of an employment matter
Katrina Bach, Chief Executive of the Department of Building and Housing
1 This summary provides background information on the raising of a personal grievance by a staff member of the Department of Building and Housing (the Department) against her employer Katrina Bach, the Chief Executive of the Department (the Chief Executive), and the subsequent disciplinary process initiated by the State Services Commissioner with respect to the actions of the Chief Executive.
2 It is intended to provide sufficient information around what occurred, the process followed and the outcome. The purpose is to satisfy the public interest in this matter while at the same time preserving the privacy of the parties and others involved in the process.
3 The State Services Commissioner (the
Commissioner) believes that the public has a legitimate
interest in expecting allegations against senior officials
in the Public Service to be properly investigated and where
misconduct is found to have occurred, that appropriate
action is taken and seen to be taken.
On or about 23 May 2011 a staff member raised a personal
grievance about the way in which the Chief Executive had
treated her. The staff member alleged two specific
incidents as well as a third more general allegation. The
first incident was said to have occurred on 29 March 2011
where the staff member said the Chief Executive spoke
harshly and swore at her. The second incident was said to
have occurred on 27 April 2011 where the Chief Executive put
her hands on the staff member’s head and said “what is
going on in that head of yours ...”. The more general
allegation related to negative language and comments
directed towards the staff member by the Chief
5 The personal grievance was first raised with the State Services Commission, which advised that the personal grievance should be raised directly with the Chief Executive of the Department, as the employer.
6 The reason for this is that, under the State Sector Act 1988, a chief executive of a Public Service department is the employer of all those persons employed in the department and therefore an employee must raise a personal grievance with the chief executive who must deal with the matter independently of any other person.
7 The Commissioner however made it clear that he expected the Chief Executive to put into place an employment investigation process that was fair and independent.
8 The Chief Executive put into place an employment investigation process. An independent lawyer, Stephanie Dyhrberg, was instructed to undertake the investigation. The Chief Executive delegated her decision-making role in respect of the outcome of the personal grievance to Ms Karen Sewell, then Acting Chief Executive, Ministry of Education, and removed herself from the decision-making process.
9 Ms Dyhrberg commenced her investigation in June 2011 and provided her findings in a report dated 19 October 2011. The report was provided to Ms Sewell as the decision-maker. A copy of her report was provided to the Commissioner on 21 October 2011.
10 Ms Dyhrberg found that the two specific incidents had occurred but found that the general allegation was not made out.
11 Ms Sewell then used the report, together with her own findings, to reach her own views on the personal grievance and how it should be resolved. On 7 November 2011 Ms Sewell provided her written decision on the personal grievance to the Department and to the Commissioner. Ms Sewell accepted the independent report’s overall findings that the two specific incidents occurred, but did not regard the first incident as being of a particularly serious nature. Ms Sewell also accepted the independent report’s findings that the general allegation was not made out. She found that the Chief Executive’s conduct towards the staff member was not appropriate. Ms Sewell concluded that the behaviour was not intended to cause harm or distress, and therefore was not bullying, but in both incidents amounted to a breach of the Department’s Code of Conduct and in one of the incidents amounted to a breach of the Department’s Harassment and Discrimination in the Workplace policy. In coming to her decision, Ms Sewell took into account that the Chief Executive intended no such result and was unaware of the staff member’s feelings at the time of the incident.
12 Ms Sewell noted the failure of the Department’s initial internal process which created additional pressure, unknown to the Chief Executive. The Chief Executive was not made aware of the complaint until 28 May 2011.
13 Ms Sewell said that it
was important that the circumstances at the time were
understood and taken into account. She noted the Department
and the Chief Executive were under immense pressure and
working to tight deadlines in responding to the National
Emergency in Christchurch
Resolution of the Personal Grievance
14 Ms Sewell attended mediation with the staff member concerned, as the Department’s representative, and reached a settlement with the staff member. That settlement is confidential between the Department and the staff member.
15 In approaching this matter, Ms Sewell had legal
advice and was guided by the Auditor-General’s guidelines
for Public sector employment settlements.
Position of the Chief Executive
16 Once the personal grievance was settled between the staff member and the Department, the Commissioner was required to consider the Chief Executive’s conduct in light of the findings and decide what action he should take as the employer of the Chief Executive.
17 The Commissioner’s decision to enter into an employment process with the chief executive was based on the findings of the investigation. The findings established after a thorough investigative process that there was an issue that the Commissioner was required to address. The Commissioner did not wish to carry out a parallel investigation given this would duplicate the one already in train, and would be unreasonably onerous on the parties and witnesses alike.
18 The Commissioner wrote to the Chief Executive outlining his concerns. He subsequently met with her on a number of occasions and considered the matters put forward by her in relation to the incidents.
19 In arriving at his decision, the Commissioner took into account the context, heavy workload and personal circumstances of the Chief Executive, including the impact the National Emergency had on her. He concluded that the conduct of the Chief Executive in relation to the staff member:
19.1 was inappropriate in relation to the incident in which the Chief Executive swore at the staff member and unacceptable in relation to the incident in which the Chief Executive put her hands on the staff member’s head; and
19.2 breached the Department’s policies and Code of Conduct.
20 He also concluded that the Department failed to adequately deal with the matter when it was brought to the attention of relevant staff. As a consequence of this process, the Department has reviewed its policies and practices for handling staff complaints.
21 The Commissioner then decided on the following:
21.1 He issued the Chief Executive with a warning;
21.2 He will work with the Chief Executive to assure himself of the Department’s work in improving its policies and practices for handling staff complaints;
21.3 The Department will work with the Commission and external parties to review its workload pressures and resource requirements;
He advised the Chief Executive that there would be a
monetary consequence for her through the operation of the
annual performance management system.
22 The Commissioner holds the bar high for the conduct and behaviour of chief executives and expects the highest standards of them. The conduct of the Chief Executive in this matter fell below the standards expected of her.
23 The Commissioner, however, is pleased that the Chief Executive acknowledged responsibility for her actions and ensured that the investigation and decision-making processes were independent.