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Workers must follow orders unless they are unlawful or unreasonable

8 February 2017

On January 27 new United States President Donald Trump signed an executive order entitled: "Protecting the nation from foreign terrorist entry into the United States". The order restricts entry into the US for 90 days for individuals from seven countries – Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen, and halts Syrian refugee resettlement entirely. Even individuals with green cards who are originally from the listed countries are being denied entry to the US.

In the US, as in New Zealand, the attorney general has an important constitutional role. The then US acting attorney general, Sally Yates issued a directive to Justice Department lawyers not to present arguments in defence of the executive order because she doubted its legality.

In doing so she refused an instruction to follow President Trump's executive order.

US courts have overturned at least part of the president's executive order. The issue is ongoing and likely to be heard by the US Supreme Court.

However, the outcome is not critical to whether or not Yates was allowed to refuse the order. There is a difference between the legality of the executive order itself and the legality of the instruction given to the acting attorney general to defend it in court.

Yates was dismissed with alacrity by the president and replaced with another acting attorney general until Trump's nomination for the permanent role can be approved by the Senate.

White House press secretary Sean Spicer has said of State Department employees they can "Either get with the program or they can go." It seems that the golden rule for US public sector employees is comply 'now, complain later'.

There are significant differences between the constitution and legal structure of the United States and that of New Zealand.

Our attorney general has principal responsibility for the Government's administration of law, and accordingly is a member of Parliament.

The US attorney general is not democratically elected and holds a purely official role, although the appointment is approved by the Senate.

There are other examples in US history of attorneys general refusing to follow orders. Richard Nixon's 'Saturday Night Massacre' in 1973 when the attorney general and deputy attorney general resigned in protest after Nixon ordered them to dismiss the special prosecutor in the Watergate case, Archibald Cox.

In 2011 then US attorney general, Eric Holder, announced that the Justice Department would not defend legislation which limited the definition of marriage. He believed it was unconstitutionally discriminatory. However, in this case the Obama administration supported his position.

Turning to employment law in New Zealand, an employee has a fundamental duty of obedience. The employee must obey an instruction from their employer unless it is unlawful or unreasonable.

If they don't, they may be dismissed following a fair process. What is unlawful might normally be obvious, but what is reasonable is another matter.

A good example is Makeham v New Plymouth District Council. In that case, council employees refused to wear name badges stating their first and last names while on duty in parks or the aquatic centre.

The council wanted to appear more friendly and accountable and required badges to be worn by all staff except parking wardens and animal control officers.

Affected staff gave evidence of harassment, threats of violence against their families, and verbal violence. They were easy targets as people could track them down by using their full name.

The Employment Court held that requiring council staff to wear badges was not unlawful but it was unreasonable as it did not apply to all staff in similar positions. The evidence of risk to employees persuaded the court that they had good reasons for refusing the instruction.

Normally, an instruction will be lawful and reasonable and an employee must obey it. In New Zealand we have a strong tradition of an independent civil service which gives advice from a position of political neutrality and acknowledges its obligation to carry out the policy of the government of the day.

Public servants in New Zealand will be pleased to know that the chief executive of their department or agency has the final say on their employment and has a duty to act independently in such matters.

In this way general state sector employees are protected from being dismissed on the whim of a minister or even the prime minister, however unlikely this may be.

Chief executives are themselves responsible to the minister for the performance of their duties and the performance of their department.

Many in the US will see Sally Yates as a courageous lawyer refusing to support discriminatory legislation.

Others, who side with the president, will believe it is quite wrong for an attorney general to choose which laws to support. They believe that doing so erodes the rule of law and inhibits the courts' role as a constitutional check on power.

What are your views? Without doubt President Trump is going to challenge our thinking for a long time to come.

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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