Leighton Associates turns 2! – by Tristam Price

The last year has seen a general election, with Fair Pay Agreements and a Fair Work Commission (or similar) mooted. We don’t know how that will change the employment dispute resolution landscape, but we do know Australia’s Fair Work Commission is better than what we’ve got.

Our knowledge of legal “blessings” such as contracts that pervert the course of justice has increased, with the shroud torn off a British NDA, the parties being Harvey Weinstein (who is now in jail) and Zelda Perkins who lived in fear of legal action for nearly 20 years before courageously deciding her story had to be told, and finding it was the lawyers that were in trouble, not her. Thus we discovered that it’s not just New Zealand that has a problem with parties being able to contract out of criminal liability, even if it's only by bluff.

Our explanations of certain legal processes that are in conflict with the spirit of the Protected Disclosure and Privacy Acts, particularly around Section 149 of the Employment Relations Act 2000 - which basically says a mediated settlement agreement is final, binding and enforceable - are available to not only the legal community but also the public. This tends to level the playing field as the weaker party, usually the employee, is better able to assess the risks involved in raising a Personal Grievance for example.

Employers that have made claims against former employees, have presumably done so knowing that the Employment Relations Authority Determination will eventually be publicised first on the MBIE database, then us, mainstream media, or both. At least one public sector organisation has been so upset with our reporting of their SLAPP against a former employee, that the employee in the course of having Personal Grievance claims heard was asked in the witness stand about her relationship to us!

Employers that have Protected Disclosure processes are likely to benefit from our publications, because we often report incidents where the Protected Disclosures Act 2000 has been circumvented by way of gagging and even prosecuting whistleblowers. It’s in employers’ interests to prevent these “Section 149” operations from being used to cover up serious wrongdoing and allow that wrongdoing to continue. Making sure that Protected Disclosures are exactly that, will make employees less fearful about coming forward to express their concerns.

Obviously our publications are going to be convenient for some parties, but inconvenient for others. In the last year, since before lockdown in fact, the more aggressive employers’ lawyers who used to try it on with us have been pretty quiet, although we did have to send a Cease and Desist letter to an overreaching lawyer recently.

It appears that LA are now part of the furniture and what we consider a newsworthy article might differ from what mainstream media considers newsworthy. That means we could be the only media organisation reporting on a certain, usually technically complex case. What mainstream media reject as being too complex, we pick up and report in a mainstream media style. Even if we don’t get a lot of views for some articles, we’re expected to run these novel cases because we’re now well established as New Zealand’s only independent employment law research and reporting organisation.

Some of our researchers left the country in the last year, but continue to contribute. We have added AML (Anti-Money Laundering) research to the scope of our activities as we have realised that there is some crossover between AML and employment law.

Over the coming year we look forward to reporting on decisions by the Employment Court of matters that we have been following for a while, and also the Court of Appeal’s Judicial Review of whether a mediated settlement agreement including criminal clauses binds third parties.