ERA Member Fuiava on Contempt of Authority - by Tristam Price

Gubb Design Ltd suffered an act of sabotage in 2021 at the hands of its employee Mr Biddle who it sacked two weeks later. ERA Member Peter Fuiava made his determination on 19 July with a damages award of $98,525, a penalty of $8,000 and costs of $6,750.

The NZ Herald beat us to the story – “Sacked worker who deleted files ordered to pay more than $100,000 in damages and penalties”.

One of my company’s long-term trading partners was attacked in this way several years ago, and I am one of many who have personally been inconvenienced by that event.

Mr Biddle’s dismissal for serious misconduct was on 16 September 2021, and he appears to have gone to ground soon after a case management conference on 28 September, and refused to engage with the ERA. Gubb Design had sought the return of its files that were in Mr Biddle’s possession, but it’s possible, even likely that he doesn’t have copies given the malice behind this matter.

Refusing to comply with the Compliance Orders Fuiava had made, or engage with process at all, could be considered to amount to obstruction.

The Herald article did not mention Gubb Design’s call for a finding of Contempt of Authority, in the interests of keeping it concise. But we believe this was the first time the Contempt of Court Act (2019) has been mentioned in the ERA in the almost two years since it became law (we can’t speak for other jurisdictions).

On contempt, Fuiava said:

[27] [Counsel for Gubb Design] invites the Authority to exercise its powers under s 196 of the Act to issue a warrant committing Mr Biddle to a term of imprisonment not exceeding six months. However, the Authority has no such power to do so.

[28] Section 196 allows for certain parts of the Contempt of Court Act 2019 (COCA) to apply (with the necessary modifications) to proceedings in the Authority. However, those modifications do not extend to making the Authority a “court” for the purposes of the COCA. Instead, a Member of the Authority is a “judicial officer” and while a judicial officer may, pursuant to s 10 of the COCA, cite a person for wilfully disrupting proceedings or order that such an individual be taken into custody until the end of the day, the Authority cannot imprison for contempt of a court order. That is a matter for a court which the Authority is not.

[29] While [Gubb Design’s] application for Mr Biddle to be committed to a term of imprisonment by the Authority must fail, it remains open to Mr Gubb to approach the Employment Court to enforce the Authority’s compliance order against Mr Biddle under s 140(6) of the Act.

However, if Mr Biddle has left New Zealand, the prospects of collecting on the award don’t look good.

Why do we care about contempt when there was no such finding here?

Because prior to the Contempt of Court Act 2019, in November 2018 in fact, a public sector employer sought a finding of contempt against a former worker and her then employment advocate, in the ERA, which we believe would similarly fail if it had been allocated to Member Fuiava.

Member Tetitaha removed those 2018 contempt proceedings to the Employment Court in February 2019, where it’s languished since. The parties? Bay of Plenty DHB v Ana Shaw, Allan Halse and Culturesafe NZ Ltd.

We call it a Zombie SLAPP which has cost the taxpayer around $300,000. Here’s a link to the DHB’s Amended Statement of Claim. The “scandalous allegations” Ms Shaw is said to have made could only mean stalking by a senior officer of the DHB at her subsequent place of work. The position of the CEO responsible was disestablished as all DHBs were absorbed into Health New Zealand, and now we’re waiting to find out if and how the new health boss intends to fund or de-fund this silly set of proceedings.

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