Sex in the Employment Court. More on BOP DHB v Ana Shaw ...

Updated: Jan 6

Leighton Associates doesn’t write much about sex. We’re not that sort of blog.

But we attended a hearing in this case in Auckland.

The legal question was whether the Employment Court could fine or imprison Allan Halse, CultureSafe and Ana Shaw for contempt for posting photographs of Pete Chandler stalking Ana Shaw, several years after she left BOP DHB, given that Member Anna Fitzgibbon had forbidden reporting anything the DHB did. Pete Chandler is Chief Executive of BOP DHB.

So the real question was whether employers can get sexual harassment covered up in advance and then do it after the employee has left, and still get them sent to prison if they report it.

Leighton Associates has been informed that the hearing had actually been held before. Mark Beech and Holland Beckett, the barrister and solicitors for BOP DHB, had argued that the Employment Relations Authority had an “inherent jurisdiction” and so was equivalent to the High Court. Although Member Fitzgibbon is reported as claiming to be a judge, she is actually a public servant. It wasn’t likely BOP DHB or any real judge would get away with that. Especially as we don't think the High Court would think it could make that sort of order encouraging sexual harassment.

Judge Corkill held the hearing again (we understand this is unprecedented) and talked about sending people to prison for contempt. He is the only Employment Court judge who has tried doing that. Although these submissions were not what Judge Corkill said in his decision that in effect, yes, your employer and manager can force unwanted attentions forever, and you have to keep quiet about it if the Employment Relations Authority says so.

Authority member Anna Fitzgibbon is famous for saying an employer is entitled to slap an employee’s “bum” if he finds it fun. The employer hailed her decision as “groundbreaking”.

Judge Kerry Smith said Anna Fitzgibbon could order a victim to pay money to two managers who had stalked her and forged her HR file, for reporting that to a senior manager.

Now Judge Corkill has said she can order people not to blow the whistle on stalking - and he can send them to prison if they don’t kiss but just tell.

The newspapers have reported how New Zealand judges are prepared to enforce cover ups for rapists and other sex offenders by threatening the High Court will send people to prison if they report their offences. Professor A.T.H. Smith and Minister Andrew Little beefed that up with their Contempt of Court Act 2019.

Leighton Associates thinks this brings New Zealand and its lawyers and judges into disrepute. We think unwanted sexual attention should be unacceptable, especially where it is aggressive and women are violated.

It is a disappointing contrast to the UK where solicitors are now being prosecuted for sexual harassment and also for trying to cover it up.

Leighton Associates are disappointed that what MBIE, Judge Corkill, Professor Smith and Minister Little have set up takes a different view from the UK. Maybe the problem is where the New Zealand offenders are lawyers not film directors.

Now that Minister Little is not in charge of “Justice” any more, we invite the New Zealand Parliament to hold a Select Committee inquiry like the UK one.

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