Courts and tribunals

Courts and tribunals

Calderbank offers - a new decision

August 27, 2010 in Costs, Courts and tribunals

dollarThose of you who know me will appreciate that I have something of a hang-up about costs awards in the employment jurisdiction and, in particular, the place of Calderbank offers.

A decision of the Court of Appeal last week has shed some light about the way in which Calderbank offers will be enforced.  The case – Bluestar Print Group Limited v Mitchell – involved a question about the effectiveness of a Calderbank offer where the employee was offered a financial outcome which exceeded the award made at the end of litigation – but where the plaintiff sought “vindication” – and argued that the Calderbank offer could not be effective unless this need was also realised.

The Court of Appeal reiterated that a “steely” approach to Calderbank offers is required in employment cases, and that – whilst the importance of reputational factors must be taken into account – an offer to pay compensation at a level that is reasonable might well be regarded as conveying a distinct element of vindication to a plaintiff.

In other words, the fact that a plaintiff may be seeking an element of vindication through litigation does not mean that an effective financial offer will be rendered meaningless in the consideration of costs issues.

That, in turn, should act as encouragement for employers to make Calderbank offers, and for the employment tribunals to enforce them (when they are effective) by requiring employees to make payment towards the employer’s costs of litigation.

“Stigma damages” - not clowning around

August 27, 2010 in Courts and tribunals

120px-sad_clownI read an interesting decision of the Employment Appeal Tribunal this week – thanks to a referral from the ever interesting English barrister, Daniel Barnett.

The case – Brown v Careham Hall involved consideration of a concept of “stigma damages”.

In simple terms, the concept is that where a person has been dismissed from a job, the circumstances may be such that it becomes difficult for him or her to obtain another job in the same industry – because of the stigma that attaches to the dismissal.  And, where that dismissal is subsequently proven to be unjustified, should the person be allowed to seek damages in respect of this particular type of disadvantage? 

This decision of the Employment Appeal Tribunal suggests that the concept is not flawed – and can be recognised in a compensatory award.  But, at the same time, the Tribunal makes the valid point that it is the bias – or general unfairness – of the prospective employers which causes the particular loss, and that not all of the blame can be sheeted home to the former employer.

Zombie protesters win their claim - the undead are $165,000 better off!

August 27, 2010 in Courts and tribunals

zombies_79201360Over recent weeks there has been a little bit of publicity given to the creative protests organized by the CTU concerning fairness at work.  Amongst other things, their rallies have involved speeches, musical performances, dancing and other entertainment. 

All of these different things are, however, relatively tame compared to a protest in the United States which has recently resulted in settlement of litigation.  It seems that a group of workers dressed up as zombies to protest “mindless consumerism” in Minneapolis.  They were arrested, but never charged with a crime. 

The zombies sued the city (which was responsible for their arrest) and succeeded in achieving a settlement of $165,000.

Regrettably, there is no indication provided as to how the undead spend their money!

Employment advocates - time to regulate?

July 27, 2010 in Courts and tribunals, Mediation and settlement

120px-ivy_mike_-_mushroom_cloudAs least in the minds of some, the announcement that the Government will be taking steps to regulate employee advocates came as something of a surprise.  Not so much to members of the employment law community, however. 

In distinction to most other jurisdictions, employment law allows – people who are not qualified as lawyers to act as counsel in a legal forum.  The practice probably has its origins in the union movement several decades ago – where union advocates were legitimately skilled in advancing points on behalf of their unions – but weren’t necessarily legally qualified. 

What has arisen over the last decade, however, is a more concerning practice – where non-legally qualified advocates act for employee complainants – often on a “no win no fee” basis. 

Lawyers are constrained in their ability to act on contingency fee arrangements – and, amongst other things, are ethically prevented from drumming up litigation where to do so is irresponsible. 

The same constraints are not placed upon advocates, however, and there is a view (at least held by a number of lawyers) that, in this way, advocates are bad for the employment law system. 

In my view, advocates have a legitimate place to play in the employment law jurisdiction – and those of them who act responsibly should have no fear about the introduction of regulation to control their behaviour. 

It would seem, however, that the Government has a view that the actions of some require limitation and control. 

Proposed changes to employment law

July 19, 2010 in Courts and tribunals

the-two-bobsA quick update for those interested in the potential changes to New Zealand’s employment laws.

 

Here is a succinct summary of the proposed changes announced by the Prime Minister:

 

1.       Extending 90 day trial period to all workplaces.

 

2.       Employers will be able to communicate directly with workers during collective bargaining.

 

3.       Union access will require employer consent, which ‘cannot be unreasonably withheld’.

 

4.       Reduced focus on procedural fairness in personal grievance cases. The Government will ‘ensure that an employer’s processes are not the subject of pedantic scrutiny’.

 

5.       The Employment Court will have less ability to question the reason for dismissal as the test is changed from what a reasonable employer ‘would’ do, to ‘could’ do.

 

6.       Removing reinstatement as the primary remedy in dismissal cases.

 

7.       The Employment Relations Authority will be able to ‘filter out vexatious or frivolous claims at an early stage’.

 

8.       There will be penalties for delaying behaviour at the Authority.

 

9.       Up to one week’s annual holidays can be traded for cash.

 

10.   For those workers whose hours of work and pay are irregular, their payment for sick leave, bereavement leave, public holidays and alternative holidays will be calculated by averaging gross earnings for the preceding 52 weeks or whatever lesser period the employee has been with that employer.

 

11.   Workers can agree to transfer the observance of public holidays to another (identified) working day.

 

12.   Employers will be able to ‘ask for proof of sickness or injury within three consecutive days of an employee taking sick leave, but will have to cover the employee’s reasonable costs in obtaining proof’.

 

13.   The maximum penalties for non-compliance with the Holidays Act will double from $5,000 to $10,000 if the employer is an individual, and from $10,000 to $20,000 if the employer is a company or other body corporate.

 

14.   Early mediation services without representation, prior to any formal mediation.

 

15.   The Government intends to make some other changes ‘to improve the way the Employment Relations Authority works, including moving to a more judicial mode of operation, with the right to cross-examine witnesses’.

16.   A code of ethics for employment advocates.

 

17.   Formal definition of the role of Labour Inspector.

 

18.   Allowing Labour Inspectors to issue improvement notices.

 

Also, click here to have a look at the Department of Labour’s evaluation of the first year of operation of the 90 day trial period.

 

 

Son nabs Dad’s confidential info - would Dad get the boot?

July 16, 2010 in Courts and tribunals, Workplace quandaries

father-and-sonThere is a saying that blood is thicker than water – and probably no more so than in an employment context. 

The Business Journal (a publication from Ohio in the US) ran a story this week about a case involving use of confidential information – and an enormous verdict which was awarded as a consequence. 

The kicker?  The information was sourced by the son of an employee – and then used against the father’s company. 

This sort of case arises from time to time in New Zealand – and usually raises issues about an employee’s adherence to rules of security and disclosure of information.  In this case, for example, the father could probably expect to be criticised by his employer for failing to secure the company’s confidential information - and possibly dismissed for allowing the son to access this data. 

An interesting read.

 

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