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When is defacing an ambulance not a firing defence? When it's done by staff taking industrial action

Date: 06/03/2019

In recent weeks St John paramedics have received media attention for defacing Ambulances as part of a campaign of industrial action.  Messages have been scrawled across Ambulances with liquid chalk, but also, in some cases, permanent markers.  The slogans have included “do you know we work 24/7 with no penal rates”, “first to pay minimum wage” and “highly trained paramedic going cheap”.

St John has issued a public statement saying:

“We have received formal complaints from our donors, supporters and St John members.  The graffiti is also causing increased distress to patients and families already in a vulnerable state”.

The question that members of the public might be asking is why St John has not been able to fire the perpetrators.  Certainly in ordinary circumstances an employee who deliberately defaces or damages their employer’s property could expect to get their marching orders.

In this instance, though, because the action has been taken under the banner of industrial action, the employees are effectively protected from any disciplinary action.

This raises an interesting issue as to what forms strike action can take.  Traditionally we think of employees who are on strike as not attending work, but the legal definition of a “strike” is far broader than this.  It can include any action by employees amounting to “breaking their employment agreements”.  It can also include attending work but refusing to perform certain duties.

Basically, as long as the action is taken collectively by employees, in support of their position in collective bargaining, it can take virtually any form.

There have been some unusual examples of strike action being taken in this context.

By way of example, postal workers have previously engaged in partial strike action by reposting mail instead of delivering it, Air New Zealand flight attendants have refused to comply with the uniform policy, and freight workers have refused to load certain vehicles.

More recently bus drivers in Wellington voted in favour of industrial action which would include refusing to take fares from passengers.

Generally strike action falling short of a complete withdrawal of labour is known as a “partial strike”.  In 2015 the then National Government introduced into law provision for a 10% minimum pay deduction for employees engaging in partial strike action.  This was a consequence of a number of strikes that had occurred within the public sector where employees were refusing to perform parts of their jobs, but were still entitled to their full pay as they were physically at work for their full contractual hours. 

Because there were no adverse consequences for employees, this type of strike action could drag on for months, with there being little or nothing that the employer could do about it.  The introduction of a right to make a pay deduction in respect of workers who were engaging in partial strike action was therefore intended to provide some balance between the interests of employees and employers in this context.

However, the most recent amendments to the Employment Relations Act have now removed the ability of employers to make deductions from employees’ pay when they are engaging in partial strikes but still turning up for a full day’s work.

It may seem odd that employees can effectively act in breach of their employment agreement during a strike, but could be fired for doing the same thing at any other time.  This situation is a unique part of the right to take strike action as part of bargaining. 

However, the removal of the 10% pay deduction for partial strikes means that there is now no consequence for employees engaging in this form of strike action.  In other words, there is no pressure or reason for them to limit how long they carry on this type of action, because they are not losing anything.  In contrast, there can often be significant consequences for the employer, especially when the action involves refusing to collect money from clients or the defacing of employer property.

During the debate about the amendments to the Employment Relations Act employer groups criticised the removal of the ability to make pay deductions for partial strikes on the basis that this would increase the prevalence of this type of strike action.  This is highly likely to be true, and the recent action taken by St John paramedics is a good example of this.