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Sending the Boys Around - by Kim Leighton


Street justice is generally perpetrated by individuals who:


- Want to have a dispute resolved without involving courts, tribunals or authorities, or even mediation

- Are convinced they’re right and the other party is wrong.


We’ll give a few examples of disputes that ended up in the Employment Relations Authority and/or the Employment Court, where the failure of street justice has been mentioned in publicised documents.


This is what we believe street justice is, in the employment context:


- Intimidation and harassment

- Wilful damage to property

- Theft (of stock, equipment etc)

- Blackmail

- Disparagement, including on social media

- Faking and destruction of documents

- Obstruction of processes from internal investigations to court proceedings


And what it is not:


- Wage theft; as employers generally don’t expect to get away with it

- Fraud; as this is mostly opportunistic and happens over a period of time, enabled by rationalisation and a sense of entitlement

- Appropriation of commercially sensitive information


We are unaware of anyone who has been charged with a criminal offence in relation to overreaching attempts to stop an employment dispute from going through a formal process, so the risk of criminal sanctions for vigilante behaviour must be low. However, we are aware of attempts at street justice that failed spectacularly and cost one or both parties six figure sums in legal fees and lost earnings. A couple of these remain unresolved.


Threats and Wilful Damage Against Employers


All of the following examples have been perpetrated by the employer or manager. If employees have threatened violence, or otherwise retaliated against their employer or manager, we have been unable to find any examples on the employment databases. We suspect that most Police intervention is not publicised, and we are aware of cases in which the Police agreed not to record reports of offences by managers. Records of criminal conduct against an employer are difficult to find on the District Court database. Depending on the circumstances, maybe some employers decline to press charges due to the risk of reputational harm. However, we welcome any information (link preferred) for a future article.



Lloyd v P J Vapes Ltd [2020] NZERA 333


We reported on this demise of a startup on 31 August. The ERA Determination states:


[12] ... Once the situation was explained Mr Lloyd’s father started making inquiries of Mr Forster. As the witnesses put it, it was then things really turned nasty. [13] ... Mr Forster immediately sought the return of Mr Lloyd’s business keys. He then chose to try to enforce the request by visiting Mr Lloyd’s parents’ home late one night accompanied by what the father described as undesirable elements. That led to Mr Lloyd senior seeking a trespass order against Mr Forster. The friend did likewise. [14] From there the relationship quickly deteriorated with Mr Forster sending threatening texts sent to Mr Lloyd, his father and the friend. Disparaging texts were also sent to others. That led to the Police advising Mr Lloyd he should not, for reasons of his own safety, return to work. He didn’t.


ERA Member Michael Loftus ordered P J Vapes Ltd to pay Mr Lloyd about $50,000, including a nearly $10,000 portion that its director Mr Forster would be personally liable for if P J Vapes was unable to pay it. However, Mr Forster was adjudged bankrupt soon after and Mr Lloyd is unlikely to receive any payment. The “undesirable elements” mentioned above were known to be methamphetamine users.



A Labour Inspector v Ahuja [2016] NZERA 610


Three companies owned by three members of the Ahuja family were in liquidation and owed four employees $68,782 in wage arrears and holiday pay.


There are certain circumstances where the limited liability of a company does not protect its director(s) if it fails, such as where the directors are caught trading while insolvent, or authorising wage theft as the Ahujas were found to have done. The ERA ordered the directors to pay a total of $68,782 to the employees. In addition, Chirag Ahuja was ordered to pay $12,000 in penalties because he hired a Black Power gang member to threaten two of the former employees in separate incidents.


http://www.nzlii.org/nz/cases/NZEmpC/2018/31.html


As migrant exploitation and threats of violence featured in this employment dispute, Chirag Ahuja was lucky to escape criminal charges. It is rare for the ERA to refer employment disputes to the District Court except to facilitate civil enforcement of penalty and wage awards where the ERA Member believes that a default is likely.


Street justice is by no means limited to small business, as we illustrate in the next two examples of public sector managers of intimidating subordinates outside the workplace.



Sawyer


A senior lecturer of a university took a personal grievance for unjustified disadvantage in March 2014 because her managers had been faking records about her. Several months later Dr Caroline Sawyer was advised by her lawyer to sign a Record of Settlement that a mediator told her was “unenforceable” to prevent the university “destroying her entire career” with the fake records. She did not receive a payout (although her lawyer did), and was disparaged and blacklisted, severely affecting her employment opportunities. In 2016 she went to the ERA, but it found against her, saying that a Record of Settlement was a statutory instrument so it can be enforced even if it is illegal. In fact we only know of one Record of Settlement where enforcement has been refused because it was illegal (8i Corp).


Significantly, Dr Sawyer had to endure several months of intimidation including having her tyres slashed both at her home and at work, had her balcony light shot out, was recorded as being on sick leave when she was actually working in a different office, and had teaching documents falsified. Her first lawyer would not stand up to the law faculty for whom Dr Sawyer worked, and was sacked. Her replacement lawyer flipped in the mediation; the university paid that lawyer approximately double what she would have been paid by Dr Sawyer.


When Dr Sawyer applied for leave to challenge the ERA Determination to the Employment, the university brought a SLAPP against her for “disparaging” her former managers, Mr X and Mr Y. Her third lawyer also flipped, and she was ordered by the ERA to pay $3,750 to Mr X and Mr Y and $1,000 to the Crown.


As shocking as this is, we have since learned that the faking of documents prior to mediation, and “sale” of the file containing the faked documents at mediation while the employee is alone in a separate room, is widespread industry practice.


Embarrassed by years of subsequent litigation, Protected Disclosures and perceptions of corruption within the ERA and Employment Court (to its benefit), the university is still employing and paying Mr X and Mr Y, although they do not have as much personal access to university money.



Shaw v BOP DHB


We’ve blogged extensively on this matter. Allegations of intimidation and harassment at Ms Shaw’s new workplace, supported by photographic evidence, have been mentioned in Court documents. The Personal Grievance claims will be heard over three days in the Employment Court in Tauranga, and there will be a further hearing in April.


As our latest update on the Shaw matter is only six weeks old, and we have nothing further to add at this time. But we look forward to reporting the Court’s decisions several months from now.


Employee theft


We all know it happens; employees who feel entitled to steal company property to the approximate value of what they believe they are owed, instead of seeking mediation. Usually the employee is not caught, but when they are, it is more likely that the matter is resolved in a confidential mediation that spares the employer the reputational harm of having the employee’s defensive justification of the theft publicised.


In the event of a liquidation or receivership it is not unusual for stock to “fall off the back of a truck”, and liquidators are generally skilled at reducing smash and grab incidents, which are more likely to happen if redundancy compensation is not provided for in employment agreements or is otherwise unlikely. Where construction companies fail, subcontractors are often left with not only bad debts as unsecured creditors, but may find that the tools they require to ply their trade elsewhere have been locked inside the premises without prior notice.


However, as previously mentioned we have been unable to find any such incidents on the ERA and Employment Court databases.

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