State Services Commission obliged to honour guarantee of work placement in public service

Leave without pay—employee guaranteed placement on return—consequences when no position found

This complaint raised the question of the State Services Commission’s obligations to state sector employees guaranteed a placement on return from leave without pay. The circumstances were that in 1984 the complainant was granted leave without pay from his job with the Ministry of Agriculture and Fisheries to take up a Volunteer Service Abroad assignment. One of the conditions of VSA was a statement by the Commission giving employees "a guarantee of placement in the Public Service upon return from the approved period of leave. Placement, however, may not be in the same department, same location or in the same grade or in the same type of work".

The complainant and his family returned to New Zealand in December 1985 and advised the Ministry and the Commission accordingly. Unfortunately, partly because of his specialist skills, a suitable placement was very hard to find. He applied but was turned down for some eighteen positions with other departments, and ultimately found work as a temporary polytechnic tutor. The complainant continued to press the Commission for a permanent job, but was advised in May 1988 that the Ministry had been told to keep him on deployment for three months and then terminate his employment. In September 1988 the Ministry gave him three months notice.

In the course of the Ombudsman’s correspondence with the Commissioner the point was made that the guarantee of placement was given in 1985 in recognition of the size of the Public Service, but placement became very difficult once restructuring resulted in a substantial reduction in the number of employees. The Ombudsman acknowledged that difficulties had arisen through changes in circumstances beyond the control of the parties to the dispute, but the fact remained the guarantee was freely given and in the Ombudsman’s view the Commission remained morally bound to recognise the obligation.

In summary, the complainant was given a guarantee of placement on return from his VSA assignment, but was not offered a single permanent position or transferred to another department. There were conflicting views on the complainant’s attitude to work, but as he was not formally directed to go to a specific position that was not a relevant consideration. The only reasonable opinion which could be formed was that the guarantee was not discharged.

Accordingly the Ombudsman formed the view the complaint could be sustained and recommended that the complainant receive a redundancy payment as if he had never been away on VSA. The Commission accepted this recommendation.

This case note is published under the authority of the Ombudsmen Rules 1989 opens page in this tab. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.