The very public announcement by NZRFU that it will be running a recruitment process for the role of All Black coach within the next 4-6 weeks, and the implicit message that the incumbent need not apply, raises issues as to the obligations on employers to protect the image and reputation of their employees. There is also the question as to whether a fair and reasonable employer can recruit a replacement for an employee before they have their foot out the door.
It appears from the reporting on the matter that Foster is employed on a fixed term employment agreement through until the end of 2023. This means that he has all of the same rights and obligations as any employee under the Employment Relations Act, and can, if he considers that he has been treated unfairly, bring a personal grievance.
The general obligation on employers under the Act is not to do anything that disadvantages an employee in their employment or which is not in good faith. The good faith requirements include being “active and constructive in establishing and maintaining a productive employment relationship in which the parties are, among other things, responsive and communicative”.
In light of these good faith obligations, Foster could reasonably have expected to be consulted about the decision of NZRFU to launch a recruitment process for a new All Black coach and to go public about this. If Foster was effectively blindsided, this could potentially amount to a breach of good faith.
With regard to the reputational impact on Foster, this is less straight forward. The All Black coach is high profile national role. Public scrutiny and attention is part of the job description.
It appears that NZRFU attempted to maintain some level of confidentiality around the recruitment process, but its hand was forced as a result of others making public statements about the process, and also comments that Foster himself has made recently about his interest in reapplying for the role. In this context NZRFU’s public commentary on the matter is unlikely to be viewed as unreasonable or unjustifiable from an employment law perspective despite the fact that it may be seen as a vote of no confidence in Foster.
This leaves the issue of whether it is fair to commence a recruiment process for Foster’s replacement, 9 months out from his contracted departure date, and 6 months before the biggest pressure event in 2023, the Rugby World Cup. Foster could rightly feel undermined by this and that it will impact on the confidence he requires to perform in the role.
However, Foster is employed on a fixed term agreement which has a stated expiry date. It is not uncommon for executive level employees, or employees in specialist positions, to be engaged in this way. The law requires that the employer have a valid and robust reason for limiting the term of the agreement, and in this case the justification is likely to be that the role requires periodic turn over to ensure fresh ideas and continual growth and development.
Assuming that the fixed term agreement itself is legitimate, there is nothing to stop an employer from commencing a recruitment process to replace a fixed term employee ahead of the expiry of the incumbent’s contract. In this case doing so 9 months ahead of time may appear to be somewhat pre-emptive and unnecessary, but this is a decision for NZRFU to make.
Whilst NZRFU may be criticised for the way it has handled this matter, given the profile and importance of the role of All Black coach, it has needed to make some hard and pragmatic decisions. Foster may regard the approach as inflammatory and inconsiderate, but it is unlikely to be unlawful.