An unsustainable situation has developed in workplace relations in recent years, which has resulted in a petition to Parliament to ban Strategic Lawsuits Against Public Participation (or SLAPP, usually an malicious type of counter claim).
The three issues with the employment dispute resolution industry that have been feeding off each other, leading to a degradation of the rule of law, are:
New Zealand is, for whatever reason, about the second worst in the OECD for workplace bullying, and has been for many years.
Unsurprisingly, anti-workplace bullying initiatives have developed, including “Pink Shirt Day”. Perhaps the poster boy for anti-bullying advocacy is Allan Halse, director of Culturesafe NZ Ltd which specialises in bullying cases, which are usually resolved in mediation. Until a couple of years ago, Halse didn’t know what a SLAPP was, let alone anti-SLAPP legislation, even after the ERA had made unprecedented penalty awards against him and his company as third parties, to be paid to clients’ former employers (we’ll explain why that happened shortly).
SLAPPs in the employment jurisdiction are on the rise, and are becoming more brazen. Indeed, Leighton Associates would not exist if a former law lecturer hadn’t been the target of a SLAPP in 2017 (we’ll also return to the law lecturer’s involvement).
The anti-SLAPP petition was brought by... Allan Halse, target of not less than five SLAPPs.
Four parties that have gone to the Employment Relations Authority (ERA) seeking penalties are former employers of Culturesafe clients. They are, in alphabetical order, Bay of Plenty District Health Board, Progress to Health, a Waikato rest home anonymised to RPW, and Turuki Healthcare.
A fifth is an attempt to enforce a mediated settlement agreement against by Halse’s former employer, Hamilton City Council. A former employee of HCC became a Culturesafe client and HCC wants money because it claims Halse disparaged it. The non-disparagement agreement that HCC claims Halse is in breach of is around seven years old.
In earlier proceedings a counsellor (acting in a volunteer capacity at the time) and a Culturesafe client were also targeted.
Hold on to your lunch now - in January 2020 Leighton Associates reported another SLAPP involving a High School whose statutory manager had dismissed a trainee teacher who was 7-8 months pregnant with her second child. She had brought a personal grievance claim in the ERA and her ordeal was reported by a local newspaper. Showing impeccable timing, the school, had her served (by email) with a cross claim while she was giving birth to her second child! Our article describing this unfortunate incident (since removed for unrelated reasons) ended up in counsel’s memorandum in the ERA. It appeared to be an attempt to weaponise our article against the trainee teacher and her advocate - despite the school’s counsel’s knowledge of the rather inconvenient timing of serving the cross claim. This is what we mean by SLAPPs becoming more brazen – instead of quietly backing off, they doubled down. That situation was quickly resolved when ERA Member Robin Arthur balked and took the unusual step of spontaneously refusing to entertain the cross claim. The latest we have on the personal grievance claim is that it’s yet to be resolved partly due to a large backlog.
Halse and Culturesafe have been represented by three lawyers over the last couple of years. One, Caroline Sawyer, was the senior law lecturer who was the target of a SLAPP in 2017, where her former managers were trying to hide their own frauds. In late 2020 Dr Sawyer prepared an application for Judicial Review of the decisions against Allan Halse in the Court of Appeal. The focus of the review is not so much about whether SLAPPs should be allowed, but mostly about the ERA’s jurisdiction - or lack thereof - over third parties.
We hope to report on the Judicial Review by the end of the year.
To sum up the Culturesafe situation which led to its director launching a petition for anti-SLAPP legislation:
Culturesafe is an anti-workplace bullying advocacy company in a country that has a poor workplace bullying record.
Culturesafe and its director have been targeted with so many SLAPPs (five confirmed, all unresolved) that it’s difficult to see how the existence of a well-organised cabal can be denied.
Four of these SLAPPs are enforcement of non-disparagement clauses in various employment settlement agreements, against a third party, namely the employees’ advocate. And the Judicial Review asks whether enforcement against third parties is legally possible in the first place.
Prior to the first penalty award in 2018 against Halse, Culturesafe and a counsellor, no enforcements had been made by the ERA against third parties. ERA Chief Member Crichton led the way (and parted ways with the ERA soon after under ambiguous circumstances).
Whistleblowers and potential whistleblowers are ofter targeted by serious wrongdoers trying to evade any examination of their work. We wrote the manual on gagging whistleblowers. It starts with sudden and serious bullying and if a bullied worker wanted to raise a personal grievance there’s a good chance they would be represented by the workplace bullying experts, Culturesafe. Thus, Culturesafe ends up with more than its fair share of details of the alleged serious wrongdoing that the bullying sought to cover up, as cases are prepared for mediation or ERA proceedings. And that could be a good enough reason for the cabal (lawyers who make a lot of money from cover ups) to try to put Culturesafe out of action using SLAPPs in a generally SLAPP-friendly ERA.
And here we are, with anti-SLAPP legislation proposed, at least in the employment jurisdiction, on top of the Judicial Review of the ERA and Employment Court.
What’s in a name?
We have used the term SLAPP liberally in articles since late 2019. We often find ourselves having to explain what a SLAPP is. While this is a commonly used legal term in the US, UK, Europe and even Australia, the legal community here in New Zealand seem to avoid allowing the term to appear in any online literature, as if the use of the term is somehow taboo and it couldn’t possibly happen here. While researching the ERA determinations against Allan Halse I personally had to explain to him what a SLAPP was.
And here we are, with anti-SLAPP legislation proposed, at least in the employment jurisdiction, on top of the Judicial Review of the ERA and Employment Court.
https://www.parliament.nz/en/pb/petitions/document/PET_112167/petition-of-allan-halse-on-behalf-of-culturesafe-nz-ltd