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Former KiwiBuild boss loses bid to keep employment dispute secret

The former Kiwibuild boss Stephen Barclay has failed in his bid to keep the details of his employment dispute with the Housing and Urban Development Authority secret.

It can now be revealed that Mr Barclay attempted to have his suspension lifted and be reinstated at work in December, after multiple complaints were laid against him, but didn't succeed

A non-publication order on the Employment Relations Authority case lifted at 6pm tonight.

The Ministry of Housing and Urban Development presented four sworn affidavits from its senior managers that detailed their complaints and concerns, which "included specific allegations and alleged retaliatory conduct (which the Authority noted the applicant denied)".

The ERA noted various complaints had been made against Mr Barclay. They fell into four categories:

(A) Undermining behaviours
(B) Stakeholder engagement
(C) Termination of a contractor relationship
(D) Criticising/diminishing staff

Three out of seven of Mr Barclay's senior leadership team laid complaints against him.

There were also complaints from "one of his indirect reports, one external stakeholder, and a senior manager in another organisation that the respondent reported to".

Mr Barclay argued he should be reinstated while the Housing and Urban Development Authority carried out an investigation into the complaints.

"He was very concerned his reputation was being adversely impacted, which once tarnished, would be very hard to put right," the ERA report reads.

Mr Barclay argued that if the complaints did not eventually result in disciplinary action against him his reputation would still have been harmed - because of "gossip, rumours and speculation about him", "his ability to return to work", "future employment prospects" and "media attention and coverage about him".

But the Employment Relations Authority noted that it was "unusual for a chief executive to face so many formal complaints, from named individuals, after such a short time in the position".

In its interim decision, which was suppressed until now, the authority was concerned that Mr Barclay "may not be able to consciously recognise and avoid behaviours that were perceived by others as negatively impacting upon them because he did not view such interactions as being inappropriate".

"The applicant did not demonstrate insight into why admitted behaviours or communications were inappropriate or could have resulted in complaints being made about him."

The ERA ruled that "the overall justice of the matter therefore weighs in favour of allowing the respondent to continue its investigation while the application remains on suspension."

Mr Barclay subsequently quit on January 18.

Then in January, and with the Employment Relations Authority's non-publication order still in force, and with his own internal investigation incomplete - Ministry of Housing and Urban Development's chief executive Andrew Crisp issued a press release attacking Mr Barclay and detailing the employment dispute:

"The resignation came amid an employment investigation which was triggered by complaints received from employees, contractors and stakeholders about Mr Barclay's leadership behaviour.

The allegations reflected behaviours that are not consistent with standards expected of senior public servants," Andrew Crisp said.

1 NEWS, Radio New Zealand and Stuff together challenged the ERA's interim non-publication order, arguing the existing publication order "no longer served any legitimate purpose" give the public statements Mr Barclay and the Housing and Urban Development Authority were making.

Mr Barclay opposed the public release of the ERA's interim decision on several fronts.

He felt it would be "extremely unfair” to him if his name was published but the names of the people who had laid complaints against him were not.

Mr Barclay also told the ERA, "I believe it would be extremely unfair to allow the media to publish extracts from an interim decision that does not deal with the substantive merits of my case, and which could cause extraordinary damage to my brand and reputation unless put in the context of a full decision.

"I strongly believe there is a high risk that if the interim decision is released it will not be fairly or accurately reported and that damage to my reputation will be irrecoverable."

The ERA disagreed, saying Mr Barclay "has not discharged the onus of establishing on the balance of probabilities that there are specific adverse consequences that would result from the current non-publication orders being lifted or which would justify a continued departed from the fundamental principle of open justice".