Employment Court rules NZTA breached confidentiality clause

Veronica Byrne provided adminstration support to Opus on the Northland Bridges Project like the one at Matakohe when NZTA asked that she be removed. Photo/Michael Cunningham

A government agency breached a confidential settlement agreement with a former employee by disparaging her to the woman's new employer resulting in her losing that job.

Veronica Byrne, a civil engineer, started work with the New Zealand Transport Agency in January 2015 as the maintenance contract manager for Northland and Auckland, based in Whangārei.

Employment issues arose during the initial months that resulted in her complaining to management about how her colleagues were treating her.

She named NZTA's Jacqui Hori-Hoult and two others who have name suppression as people that behaved in a bullying and threatening manner, undermined her work, and failed to follow NZTA procedures.

The three thought Byrne was often belligerent and refused to listen about particular issues.
Both parties eventually entered into a settlement agreement after Byrne said she would be interested in an exit package.

One of the terms of the confidential agreement was that she would resign and neither party would disparage the other.

Sometime later, Byrne obtained work with WSP Opus on a casual contract as a senior engineer for civil projects on the Northland bridges project.

WSP Opus was contracted to NZTA which had the ability to say as per the contract how many people and who would work on the project.

When NZTA employee Kevin Johnson was asked to work on the project, he said he would have concerns working with Byrne.

Johnson and Byrne both lived on the same rural road in Northland.

NZTA asked Opus to remove her from the project without providing reasons for that request due to an earlier confidential agreement that included a non-disparagement clause.

She was removed in March 2018.

Her performance when working for Opus was satisfactory in all aspects, including her regular interactions with NZTA staff.

She took NZTA to the Employment Relations Authority which dismissed her claims.

Byrne then went to the Employment Court and argued unresolved employment issues were factored in the decision to remove her and the injustice of such an approach was that matters that were not investigated influenced the outcome.

In one conversation with Byrne, Opus business manager Peter Houba said: "You must have done something really bad for NZTA to request this", in reference to a request that she be removed.

"Mr Houba approached no fewer than three persons to attempt to understand why the request was being made. This only served to exacerbate the disparagement," Employment Court judge Bruce Corkill noted in his ruling.

He said NZTA client representative for the project James Sephton's decision to authorise the installation of a dashboard camera on Johnson's vehicle— supplied by NZTA— to capture "untoward behaviour" on the road on which the latter and Byrne lived was a most surprising step.

The judge said Sephton justified his decision on health and safety grounds but appeared to have done so without any proper consideration of the context in which it would be used or by any reality testing of what Johnson told him.

"The consequence of this evidence being placed before the court is that it has placed a spotlight unnecessarily on events which were, at best, peripheral and of little assistance to the court," Judge Corkill said.

Byrne said it was great to finally get a favourable outcome in court.

NZTA would not appeal the ruling.