David Flaws
Employment Advocate

People adopt and defend positions for a whole range of reasons, but sometimes, a well resourced employer would rather pay an expensive barrister than acknowledge they were wrong. Ultimately they can do that, and if they are prepared to throw money at the fight and escalate the risk for the worker, most people will back down and settle for much less than their case is worth to avoid a big risk.

Background
Cheryn is a gay man who worked for a Govt Department. He was never hassled for being gay – in fact for the first six months of his employment he was never hassled at all. Then the team leader left and was not replaced, and things gradually turned to custard.

Peter, one of the other employees in the team, was grossly incompetent. He was careless with confidential information, and failed to complete documentation and follow the operating procedures that had been agreed. Peter’s interpersonal skills were woeful, he told lies to cover his deficiencies, and he made sexually innappropriate remarks about female clients that the female staff in the team and Cheryn found completely out of order.

Trouble
Extensive training and a “quiet word” to Peter had been inneffective, and when Cheryn raised a lack of operational effectiveness as an issue the whole team should address, Peter and JR, who was his “mentor” turned on Cheryn and were quite abusive. Over the next six months Cheryn tried to have the deficiencies in the service caused by Peter’s incompetence and JR’s willingness to “cover” for him addressed officially. No show. Dick, their immediate manager sided with the other “straight” males and identified Cheryn as “the problem”. He did not find Peter’s sexual remarks out of order, and warned Cheryn against “causing trouble”.

Peter and JR began to actively bully Cheryn, and made his working environment really unpleasant. He raised the issue with his supervisor and told Dick the manager that Peter and JR were bullying him, but Dick just laughed and refused to take his complaint seriously. Cheryn’s supervisor wrote to Dick, complaining that the sexually innappropriate behavior around female clients had to be addressed, and Cheryn continued to complain about the bullying, which was getting worse every week.

More Trouble
Then Peter laid a complaint of bullying against Cheryn. The Department set up an investigation with very wide terms of reference. They seemed to be designed to give very wide scope for a finding that Cheryn had behaved innappropriately or contrary to the Department’s Code of Conduct. The investigation dragged on for months. Dick admitted to the investigator that Cheryn had complained to him that he was being bullied by Peter and JR. Eventually, Cheryn was completely cleared of bullying or innappropriate behavior towards Peter. But Peter and JR continued to bully Cheryn.

Cheryn’s health started to deteriorate because of the stress that Peter and JR’s bullying was causing, and his Doctor and his supervisor were both clear that he had to “get out of there”. He resigned from his position and took another job with lower pay.

Call an Advocate
Then he called me. He should have done that before he resigned. It is always better to make a strong case while the employee is still in the job and negotiate an exit package rather than have to deal with the situation where the employee has gone and then argue that they had no choice other than to resign.

Legal Issues
The legal position was very simple. Cheryn had complained to his manager Dick that he was being bullied. Dick’s failure to take Cheryn’s complaint seroiusly and investigate it was a clear breach of his duty as a good employer in terms of s103A of the Employment Relations Act. A Personal Grievance for Unjustified Disadvantage was as certain as it reasonably could be. Whether JR and Peter actually had been bullying Cheryn was of lesser importance. If it could be proved that they were, it would add to Cheryn’s Hurt and Humiliation and to the payment that he would receive in consequence, but the fact that Cheryn’s complaint was not investigated established the Unjustified Disadvantage.

If there had been any element of “gay bashing” or homophobia in Peter and JR’s behavior, the bullying would have been a Human Rights issue, and could have been taken to the Human Rights Commission, but Cheryn’s sexual orientation was not an issue (except that he was not part of the “old boys club” that operated in the Govt Depatment he worked in), so this was a matter for the Employment Relations Authority.

I also thought it was worth arguing that Cheryn had had no option other than to resign as a result of Dick’s action and the ongoing bullying from Peter and JR. If that could be established, then a Personal Grievance for Constructive Dismissal would entitle Cheryn to three months wages in addition to a payment for Hurt and Humiliation he would get for the Unjustified Disadvantage.

First Negotiations
I notified the employer of a PG for Unjustified Disadvantage and Unjustified Dismissal by way of Constructive Dismissal, and suggested we talk. They took a very long time to answer and when we eventually met, they (quite reasonably) asked for details and (quite unreasonably) then delayed the process of going to mediation for nearly six months.

The matter should have settled in mediation. Cheryn had complained of being bullied. There was no argument about that. His manager Dick had laughed at his complaint and failed to investigate it. No argument about that. But the employer would not address that issue and kept taking the argument sideways into a consideration of whether Cheryn had “really” been bullied, or whether he was the author of his own misfortune. I kept reminding the employer that publicity about an “old boys club” of male managers ignoring complaints of sexually innappropriate behavior by a male staff member would not be a good look.

We went away from the mediation with a request to supply more details of the bullying. We did, and months and months later, the employer finally determined to fight the case and we filed a Statement of Problem with the Employment Relations Authority and a hearing date was set down.

First Strike

Government Departments have deep pockets, and they engaged a very senior and experienced (and bloody good) barrister specialising in employment cases. They could have settled the whole case for less than what it costs to say “good morning” to him. He was enormously smart and competent, and after making mincemeat of me in a telephone conference to set a timetable for the case, he informed me that he would be calling a dozen witnesses, and that the hearing would take three days in consequence.

I had to tell Cheryn that the risks of proceeding further had just tripled. The ERA normally adopts a “tarriff” approach to costs, and awards the successful party about $2500 per hearing day. I didn’t think Cheryn’s risk of losing and having costs awarded against him were very high, but tripling even a low risk is something to be thought about.

King hit

For a three day hearing, Cheryns’ risk was about $7500 in costs if he lost. He calculated that the Govt Dept would be spending the thick end of $40,000 on the case, and decided to proceed. Then their barrister made a ridiculously low “Calderbank” offer to settle the matter.

There is more info about a “Calderbank” offer in the notes on Employment Law on this site, but the simple effect is that if a Calderbank offer is made and rejected, and the award eventually made is less than the “Calderbank” offer, the ERA can award the full costs of the proceedings against the winner – so even though Cheryn was fairly certain to win an award, if it was less than their low offer, he might be stuck with a $40,000 bill for costs.

There was no way he could take that risk, and I had to advise him to settle for an amount that was less than half what he could have reasonably expected to get from the ERA.

$4000 fine after chef’s alleged coke recipe http://www.stuff.co.nz/national/4651007/4000-fine-after-chefs-alleged-coke-r
The article was good – and adequately reflected the content of the Authority’s determination. The headline was nonsense, and manufactured sensational nonsense at that.

The Employment Relations Authority did not fine the employer. The Authority awarded a worker some money for hurt and humiliation, and some for lost wages after his employer failed to carry out a fair process and suspended him without pay or consultation. The “coke recipe” was only in the headline to titillate the reader’s imagination.

NZ Herald link: Cafe cheated worker of pay

The existence of this article raises some interesting questions. When the reporter rang me I realised that my intention to keep everything about all my client’s business confidential was about to be tested.

When a client comes to me with a problem, it is easy to keep the matter confidential right up until the time it goes before the ERA. Since 90% of my cases are resolved before an ERA hearing (called an Investigation Meeting), confidentiality is always part of the settlement, and rarely causes any difficulties or problems.

But once things go before the Authority (ERA), they are like Court proceedings and the hearings are open and the decisions (called Determinations) are public, and available to the press.

This was the second time that a reporter had followed up a favorable decision of the ERA on one of my cases, but previously the reporter concerned had gone straight to my client. This time they had come to me.

I had been intending to post about this case on the website in the usual way -with names and details changed to protect the privacy of the client, but since Determinations of the ERA are public documents and they named not only my client, but also me as her representative, strict confidentiality had already gone out the window. I told the reporter I didn’t want to comment and that I would advise my client not to, but she went ahead anyway and got comment from the employer.

So I can say something about it – but only based on the Determination.

The case was huge – not for the money, but for the amount of time and volume and complexity of the evidence. The café claimed my client started 3 months after she actually did and worked only 20 hrs per week (paid by cheque and accounted for through IRD) – but in fact she was working long hours and they were treating her like all the other workers and paying the bulk of the wages in cash. They told her they were paying the IRD the tax they deducted but they were actually pocketing it. They kept falsified wages and time records accordingly, but these records were clearly nonsense and not even internally consistent.

When push came to shove, the Cafe produced their other workers as witnesses. They gave sworn evidence that the Authority found “unsatisfactory” that they themselves had only worked limited hours, and that my client had worked only 20 hours per week and that no one had ever been paid in cash.
I am not surprised that the Authority found for my client. Her witnesses were consistent and straightforward, and her case was bolstered by a huge amount of documentary evidence.

The Little Turkish Café are threatening to appeal to the Employment Court, but I don’t ultimately think they will. I think they know that their witnesses will still be “unsatisfactory”, and my client’s 15cm file of documents will be just as convincing in the Employment Court.