Sawyer: the legal precedent lawyers should avoid – by Karen Davis

In March 2018, lawyer Dr Caroline Sawyer was refused disclosure on the originating IP addresses of emails sent to certain recipients from her work email, including from her office while she was outside of it.

Three months later the Employment Court effectively blessed payments that the ERA had ordered her to make to two former colleagues for disparaging them by discussing them with a senior colleague, on the basis that she had not challenged the ERA’s Compliance Order within 28 days.

The original dispute was between Dr Sawyer and the law faculty of a university. She said, and continues to say that the mediated settlement agreement was an instrument of fraud. She produced evidence that her work records were forged but, as above, was refused disclosure of evidence that might have proven more. Any of that should have caused the supposed settlement to be set aside. Other evidence she had given to her lawyer was sold to the employer's lawyer behind her back (a not uncommon practice as we later discovered), and she was unable to put those valuable documents in evidence.

The penalty that Dr Sawyer was ordered to pay to two former colleagues Mr X and Mr Y was a strategic lawsuit against public participation (SLAPP), as well as demonstrating that they and their lawyers had something desperate to hide. Considerable resources were pooled from the industry to provide wraparound support for Mr X and Mr Y, including preventing Mr X and Mr Y from having to hand back their $3,750 windfalls that were ostensibly compensation for disparagement but to the lay person could be described as a kickback.

The purpose of the ERA is to resolve disputes between employers, employees and unions. Counsel who argue their clients’ case will normally use precedents in submissions to the ERA and other jurisdictions to justify their clients’ position. The Sawyer matter has been used as a precedent only twice, and we believe that most employment lawyers are aware of the stench of corruption associated with it, and simply avoid it.

Let’s examine the two cases where the Sawyer precedent has nonetheless been used to transfer money to the wrong parties:

1. RPW v C and H, March 2019: A $6,000 portion of a penalty was ordered to be paid to RPW’s lawyer! In September 2020 the Employment Court disagreed and ordered that the $6,000 portion be paid to the Crown instead. We have reported on this before. Caroline Sawyer, by then a lawyer rebuilding her career after having been set upon by a powerful Wellington cabal that unfortunately includes judges, took C and H’s case to the Court of Appeal for Judicial Review and we hope to have some news on that by the end of the year.

2. Oranga Tamariki v SLU, May 2021: SLU is a temporarily anonymised former employee who signed a mediated settlement agreement including a non-disparagement clause that Member Doyle found him to have breached. Taking SLU’s difficult financial circumstances into account, he was ordered to pay a $6,000 penalty; $1,200 to the Crown and $4,800 to the employees he was found to have diaparaged. Again, the intended recipients were inapproprate; it’s not the ERA’s job to resolve disputes between employees and colleagues. Absurdly the ERA determination did not specify who would get what. We also reported on this.

We mentioned earlier that Mr X and Mr Y were each awarded $3,750 from Dr Sawyer as “compensation” for disparagement; the result of an operation that cost the taxpayer around $0.5M in lawyers' fees, reflecting their “protected species” status.

The imbalance of power was similarly absurd. But in the interests of keeping this article short, we return to the two attempts to use the Sawyer matter as a precedent. In RPW v C and H we can understand counsel’s ignorance culminating in his case becoming a train wreck. Mistakes happen. Proceedings occasionally spin out of control. We get it.

But in the Oranga Tamariki v SLU matter, which is the enforcement of a non-disparagement clause in a mediated settlement agreement, with unspecified current employees invited to pick over the assets of a former colleague they don’t like, we suspect that Oranga Tamariki have received some extremely poor legal advice.

In February 2021 we reported the text of a letter from Caroline Sawyer to Hon. Michael Wood, Minister of Workplace Relations. It’s a 40 minute read and describes the use of the employment jurisdiction as a mechanism to cover up serious wrongdoing including fraud. This appears to be a milestone in Dr Sawyer’s emergence as New Zealand’s leading anti-corruption lawyer. A new agency similar to Australia’s Fair Work Commission has since been mooted and Leighton Associates are grateful for the opportunity to publish this letter.

To sum up the latest Oranga Tamariki case, its external counsel appears to have implied that a callous, reckless, fragile and profoundly damaging enforcement action against a person who is now possibly New Zealand’s leading anti-corruption lawyer, is all good. This is what we would call the height of stupidity. So for a second time, Oranga Tamariki will be receiving an email from us about our observations and it will include this article without further comment.

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