Chief Judge calls for better behaviour in authority

A key theme of Chief Judge Colgan’s recent visit to the ADLS Employment Law Committee’s monthly meeting was to remind practitioners to act appropriately when appearing before the Employment Relations Authority.

Chief Employment

The Chief Judge is aware of complaints about both counsel and advocates acting badly before the Authority. Examples of poor behaviour include addressing Authority Members and other parties rudely or disrespectfully, peremptorily walking out of Investigation Meetings and ignoring the Authority’s directions.

The Judge wished to pass on a reminder to practitioners (through the Committee) that the Authority is a judicial body. He suggested that practitioners might consider whether they would behave the same way in the Employment Court or the High Court.

Though such poor behaviour may cause the Authority Member to form an unconscious prejudice against both the practitioner and his or her client, the Chief Judge also drew attention to two potentially overt consequences that could arise. First, either the Authority, or NZLS itself, may initiate a complaint to the Standards Committee. Second, egregious misbehaviour may give rise to an action for contempt of the Authority, brought in the Employment Court.

In relation to cases where counsel and their clients had ignored directions made by the Authority, the Chief Judge reminded practitioners that the effect of section 179(5) of the Employment Relations Act 2000 is that a party cannot challenge a procedural direction in the Court. So the only proper course to take when there is dissatisfaction with the Authority’s directions is to apply to the Authority to seek to have those directions set aside or varied on good grounds.

Hearing fees

On a further practical note, the Chief Judge indicated that the Employment Court Registry was finding it increasingly difficult to recoup hearing fees from parties following fixtures.

Though the first day of a hearing is free, any ensuing hearing time attracts a fee. The practice of the Registry has been to bill the plaintiff’s counsel for the balance payable after the hearing has ended. However, in some cases, lawyers are claiming that they have not retained funds from their clients to pay those fees and the clients themselves are unwilling to pay.

While the Registry is seeking the assistance of the Collections Service of the Ministry of Justice to recover any unpaid hearing fees, it is likely that, in the near future, hearing fees will increase and may even need to be paid in advance as they are in other courts. Counsel should be aware of the need to pay these fees after the hearing concludes.

Decisions of note affecting employees who face criminal charges

The Chief Judge drew the Committee’s attention to two recent decisions, of the Court of Appeal and the High Court respectively, that were relevant for practitioners dealing with employees who face criminal charge and for their employers.

In the recent judgment of ASG v Hayne, Vice Chancellor of Otago University [2016] NZCA 203, the Court of Appeal was asked to consider whether the employer had breached a District Court non-publication of name order in respect of domestic assault charges against one of its security guards. The employer had commenced disciplinary proceedings on the disclosure to it of the employee’s offending, despite the District Court’s “suppression” order. The Court of Appeal upheld the Employment Court’s judgment that the publication of the employee’s identity in these circumstances was not a breach of the order and went further by signaling that:

  • employees facing criminal charges are obliged by the good faith provisions in section 4 of the Act to advise their employer of those charges; and
  • employers wanting to refer to charges that are the subject of a non-publication order should apply to the District Court for variation of that order to enable them to investigate the matter.

In A v North Taranaki SPCA, Dobson J in the High Court agreed that employees of a rest home who had been charged with animal cruelty should have their names suppressed after being discharged without conviction. The High Court accepted that the employees were in a workplace where they might be bullied and their employment would be at a risk.

Upcoming cases in the Employment Court

Finally, the Chief Judge alerted the Committee to several cases soon to be decided by the Court that may be of interest. In an upcoming case to be heard in Christchurch, the Court will be considering the vexed issue of how to approach multiple penalties for multiple statutory breaches. This is particularly important in cases concerning breaches of the minimum code affecting multiple employees of a single employer who have been underpaid where arguably each (short) payday represents a further breach.

In at least two upcoming cases, the Court will be asked to consider the extent to which it can go behind a mediated settlement signed-off by a mediator under section 149 of the Act. In one case, the issue arises where the agreed settlement payment appears to be below the minimum wage. In another case, the affected employee wishes to argue that she settled her case before being aware of a cause of action that may entitle her to a higher claim for underpaid wages.

Chief Judge Colgan also referred to the ongoing AFFCO litigation and indicated that the Court is being asked to decide the employer’s application under sections 59J-K of the Act for a declaration that bargaining has come to end. This will be the first decision dealing with those new bargaining provisions.

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