*** Please see our 5 February 2022 correction: https://www.leightonassociates.co.nz/post/correction-oranga-tamariki-v-win-2021
We have seen a spike in litigation involving Oranga Tamariki (Ministry for Children) lately. More personal grievance claims, and last week Newsroom was ordered to pay OT $13,000, the full cost for a High Court injunction in relation to “reverse uplift” practices. While we have some knowledge of media law, we are not knowledgeable enough to comment on family law matters so we’ll move on... though we wonder why Crown Law did not do the normal thing and ask for agreed undertakings, since Newsroom were doing whatever they asked, rather than be seen attacking the press.
The Susan Kennedy case has been dragging on for years and OT is seeking to gag Ms Kennedy through the District Court. The former senior social worker has been writing a book about her experiences about the way she had been treated as an employee of OT. Ms Kennedy’s employment advocate could not continue to represent her because only lawyers can represent clients outside the employment jurisdiction. So Caroline Sawyer is now representing her.
In a large government organisation, the occasional legal stoush – outside the confines of family law which is its main function – is to be expected.
But in the last two months we have seen two claims by Oranga Tamariki against former employees who it claims had breached non-disparagement clauses in mediated settlement agreements. At least one, Mr Win, claimed to have been making Protected Disclosures, but as we see on a regular basis the protection afforded to employee-whistleblowers is illusory and perhaps the Protected Disclosures Act 2000 (PDA) is outdated because ERA Members don’t respect it. Mr Win is now subject to a Compliance Order, with penalties to follow.
We reached out to OT’s legal team in April and brought their attention to our article How to Gag a Whistleblower in the NZ Public Service as a courtesy, and offered to have a friendly lawyer elaborate on the article’s relevence to the Win matter at no charge to OT. They declined, and we briefly considered that that ended our academic interest in the case.
Then we discovered a very similar claim against a former employee temporarily anonymised to SLU. Same lawyer (Mr Brookes) and same ERA Member (Helen Doyle). The SLU matter was by then already at the penalty phase and SLU was ordered to pay $6,000 for breaching the non-disparagement clause in his mediated settlement agreement.
Of the $6,000 penalty, $1,200 was ordered to be paid to the Crown, and an additional $2,250 costs were awarded. In the present climate, with the body whose actual job is to resolve employment relationship problems actually appointing itself chief press censor, maybe that's to be expected.
But here is where it gets ridiculous:
Paragraph 28 says:
[28] I have considered two Authority cases where there were breaches of the nondisparagement clause of a Record of Settlement... The second case involved an employee sending five emails in breach of the non-disparagement clause. The penalty imposed in that case was $8,500 ...
That penalty was against Caroline Sawyer, who was a senior law lecturer at Victoria University of Wellington. Dr Sawyer had been stitched up in a 2014 mediation and blacklisted, and had proceedings before the Employment Court in 2017 - more about those later; the $8,500 penalty that same year arose from a SLAPP and it’s common knowledge in the employment law industry that if this SLAPP had not happened, Leighton Associates would not exist.
An aggravating factor was that most of the penalty was ordered to be paid to two senior employees of the law faculty, who were anonymised.
Did we mention that Dr Sawyer was acting for ex-OT employee Susan Kennedy? OT has cited VUW v Sawyer as a precedent. Not only does this looks like another attack on opposing counsel, but VUW v Sawyer is not suitable to be used as a precedent by any proper lawyer anyway. That’s because the whole process from a faked email relationship to theft of her documentary evidence by her own lawyer means it was ‘tainted with fraud throughout”, but we guess a few people didn’t get that memo. With this being a law school, those involved chose to provide wraparound support for Mr X and Mr Y, while those uninvolved kept their heads down. We also wonder how many of those people have been threatened with forged records now that Mr X and Mr Y have obtained immunity from prosecution.
It should come as no surprise that there is a strong anti-corruption theme running through Dr Sawyer’s recent work, in fact she generously offered (through my colleague) to explain the hazards associated with the widespread practice of gagging whistleblowers, as we suspect has happened in the Win and SLU matters. Even though we appreciate that OT’s legal team said they were not in a position to accept our offer, they have gone on to insult the lawyer making that offer by citing the spiteful, cronyism-driven litigious attack on her as if it were justified. Wow!
We published Caroline Sawyer's letter dated 22 February 2021 to the Minister of Workplace Relations, Michael Wood and details of a Judicial Review on behalf of advocate Allan Halse. Leighton Associates appreciates her contribution.
Returning to OT v SLU - Paragraph 29 and 32 say:
[29] As well as considering penalties awarded in other cases I have weighed the difficult financial position of SLU...
[32] It is likely that the penalty will need to be paid by instalments and SLU should advise Oranga Tamariki of a payment plan...
More on this later.
Paragraph 31 says:
[31] It is clear that SLU’s actions caused distress to a number of employees. I consider it appropriate to award 80% of the penalty to Oranga Tamariki for the use of those employees. The balance of the penalty is to be paid to the Crown to reflect the public interest in adherence to settlement agreements under s 149.
This is only the second time we’ve seen a case where most of the penalty was awarded to employees, the first was VUW v Sawyer. At least in that case, ERA Member Fitzgibbon specified that Mr X and Mr Y were to receive $3,750 each (and were apparently reported to Wellington Police soon after for obtaining by deception, which they have never denied, just said they can't be held accountable for anything any more).
But Paragraph 31 does not specify who gets what – who exactly are “those employees” disparaged by SLU and who gets what, and when? Is it up to OT management to figure it out? Now this will be interesting!
Can you imagine the meeting where it is decided how the $4,800 should be divvied up? The pie chart might look something like this:
We can see a few contentious issues:
What if some entitled employee feels they didn’t get a big enough slice of the pie?
What if a principled employee decides, despite possible disdain for SLU, to refuse their share? Does that mean the others get more?
What if SLU, being somewhat broke, pays it off over two years and one staff member resigns before they’ve received their full share? Who gets the balance?
What if SLU stops paying, or simply falls off the face of the earth, and the employees don’t get their full share? Will OT have to pick up the tab?
Or should the whole lot go towards the staff Christmas party? If so, will SLU’s contribution be acknowledged by the big boss?
Presumably Mr Win’s penalty phase will come up soon, along with others we don’t know about yet - rinse and repeat.
Member Doyle - sort your s*** out lady.
Here’s a link to “My Wave” by Soundgarden, the inspiration for the title.
https://www.leightonassociates.co.nz/post/correction-oranga-tamariki-v-win-2021