New Zealand Legal Experience

Photo of EskaI arrived in New Zealand from South Africa in December 1993, with considerable litigation experience and a broad understanding of the whole spectrum of employment law from litigation, mediation and arbitration to sitting on the bench. In New Zealand I built on this experience as an employment lawyer practicing as a barrister-sole. I have cultivated a business-centred approach focussed on the operational requirements of companies and providing practical and workable solutions to employment problems quickly.

Clients

I have resolved employment problems and given advice to a wide range of corporate clients in the following industries: fast-food, advertising, publishing, pharmaceutical, hospitality, retail, heavy industry, engineering and construction, fishing, shipping, forestry, manufacturing, television media, charities, health and education. I represented The Warehouse across the country for seven years and represented Fulton Hogan and McDonald’s for over thirteen years. I have acted for a broad spectrum of employees from senior management down. Working for employees has enabled me get to know the inner workings of companies in many other industries.

Parliamentary Select Committee Submissions

I have made written submissions and oral representations to Parliamentary Select Committees on the Employment Relations Act and its amendment as well as on the changes to the Holidays Act.

Selected Cases

Grant Thompson v 88 C-Force Textile Industries Limited, [2012] NZERA Auckland 386.

I acted for Mr Thompson in this case. Under his employment contract he was entitled to be paid a bonus of 2% on total company sales. After 1 July 2008, the company stopped paying him any bonus, claiming he was entitled to a bonus only on his personal sales over $2 million per year. Under clause 7(a) of Mr Thompson's employment agreement it was held that he was entitled to his bonus calculated on total company sales for just over three years. 88 C-Force Textile Industries Limited was ordered to pay Mr Thompson $185,144.72 in bonus arrears as well as his holiday pay on his bonus arrears. Interest was not awarded.

It was held that C-Force had not overpaid Mr Thompson, and the company's counterclaim was dismissed.

This case relies on and upholds the legal principle that a signed employment contract, if breached by an employer, affords an employee remedies under the law to enforce the terms of the contract.

A challenge has been filed in the Employment Court claiming the interest on the amounts awarded.

Employee v Brian Anderson Accounting Limited, AA 53/09, 19 February 2009.

I acted for the employee who was awarded $18,500 in compensation and penalties. He had been employed for 6 months and was constructively dismissed by the employer. Costs are currently reserved with an award still to be decided.

The two penalties awarded against the employer and included in the $18,500 are $2,000 for illegally deducting moneys from the employee's salary and $3,000 for withholding payment of holiday pay.

The Authority reduced the award by 35 % for contribution on the basis that the employee should have been more assertive in objecting to his treatment, for his failure to work out his notice and for failing to hand over his work and files.

In my view, these findings are contrary to the very concept of a constructive dismissal where, but for the actions of the employer the employee would not have walked off the job. There is no onus in such a circumstance on an employee to object to treatment, work out notice or hand over files before walking away from a job.

Accordingly, a challenge has been filed in the Employment Court to recover the 35 % deducted by the Authority and to apply for an increase in the amount of compensation awarded.

Daniel Gledhill v Narua Beach Investments Limited t/a McDonald's Mana, WA 165/08, 12 December 2008.

I acted for the employer. In this case the employee gave away food valued at $11.70 to friends for which he had not paid. He was subsequently dismissed..

The employee filed a personal grievance. The Authority found the dismissal to be unjustified and was critical of the Company’s employment contract provisions, cash handling policies and the disciplinary enquiry but nevertheless awarded the employee no compensation at all. The authority also stated that its preliminary view was that costs should lie where they fall so that the employee was not to be paid any contribution to his legal costs either.

A challenge to the unjustified dismissal finding was filed in the Employment Court anticipating a costs claim by the employee. This challenge has now been withdrawn as no costs need to be paid to the employee.

In this case the employer stood on principle and defended his decision to dismiss the employee for theft and has not been required to pay the employee any money.

Interesting cases in 2008

Kaikeri Corporation Ltd t/a McDonald’s Kaitaia v Davis , AA 5/08, 14 January 2008

I acted for the employer. In this case the employee, Michael Davis, a crew trainer, set up a very threatening blog against his employer in which he used hostile, threatening and offensive language and photos. He also made threats against co-workers on his blog and named them individually.

The employer applied for an ex parte injunction to restrain the employee from posting further material on the blog. Concurrently, the employee was required to attend a disciplinary meeting and he immediately removed all the content from the blog.

The employee was dismissed and orders were made by the Authority to prevent any further written statements or postings by the employee about the employer on any blog or in any form of digital media.

In this case the employer acted with urgency and was successful in taking the necessary steps to shut down the blog.

Interesting cases in 2006

Kumar v McDonald’s Restaurants (New Zealand ) Ltd, AA 180/06, 23 May 2006

I acted for the employer. In this case a manager, Ashok Kumar, was dismissed for sexual harassment. He challenged his dismissal in the Employment Relations Authority claiming unjustified dismissal.

This was an interesting case as the Authority Member refused to let the employer call the two complainants to testify about the sexual harassment they had suffered. Only after Unite Union applied to subpoena one of the complainants was she actually allowed to give evidence. Up until that time the employer’s case appeared to be lost. The complainant’s evidence was however compelling and Ashok Kumar lost the case and was ordered to pay the employer a $7,450 contribution to their legal costs. 

Ashok Kumar then filed a challenge in the Employment Court which he subsequently withdrew.

in this case the employer took a stand against a manager harassing employees and was vindicated in its decision to dismiss for sexual harassment.

Interesting cases in 2005

Staykov v Cap Gemini Ernst & Young New Zealand Ltd, AC 18/05, ARC 62/03, Judge Travis, 20 April 2005

I acted for the employee Stefan Staykov. He was summarily made redundant without any consultation whatsoever. The Authority awarded a compensation award of only $8,000 on the basis of the appalling treatment of the employee and poor process that had been followed by the employer. However despite this the Authority found this to be a genuine redundancy.

The employee challenged this finding in the Employment Court on the basis that this was not a genuine redundancy and also challenged the low compensation award. Judge Travis held that it was not a genuine redundancy and awarded the employee $30,000 compensation and $21,366.17 in lost salary, leaving the costs reserved. The employee’s legal costs were subsequently agreed in a settlement with the employer.

In this case the employee’s perseverance and courage to continue to pursue this claim to the Employment Court paid off and he was awarded a high sum of compensation and all his lost salary, with an agreed settlement of his legal costs.

Ngarimu Daniels v Maori Television , AA 330/05, 29 August 2005

I acted for the employer Maori Television. The employee was the news reader on Te Kaea, the broadcaster’s flagship news program. She had been given a warning for participating in protest action outside the Prime Minister’s electoral office when an axe had been thrown into the window frame of the office and had been instructed not to participate in similar future protest action. The employer considered that the employee was the face of Maori Television, a broadcaster who had to present news objectively and impartially. The employee’s participation in the protest action was considered compromising of this requirement.

The employee brought a personal grievance claim in the Authority on the basis of the warning and the instruction that she may not participate in protest action in future. She also accused her manager of bullying.

The Authority Member held that the employee had been disadvantaged in her employment because of the warning and the instruction not to take part in any further protest action and awarded the employee $16,000 compensation. The hearing lasted 7 days and a costs award of $30,000 was made towards the employee’s costs of $56,000 charged by her representative, Ken Mair.

Unfortunately the employer would not challenge the decision in the Employment Court where I believe this decision would have been overturned. The hearing in the Authority had been a real fiasco as the Authority Member failed to control the process and the evidence needed to prove the case. Instead all manner of un-briefed, irrelevant witnesses and evidence was allowed which lengthened the case and increased the costs substantially for both parties. Also the concept of Tikanga Maori was allowed to prevail over the rights of a company to run a business.

This case highlights the problems of process, evidence and the high level of costs facing both employers and employees in the Authority.

Interesting cases in 2001

The Warehouse Ltd v Martin Cooper, AC 20/01, Judge Travis, 20 March 2001

I acted for the The Warehouse. Martin Cooper, the Branch Manager of The Warehouse Store in Tauranga was dismissed for serious bullying of the Loss Prevention Officer.

Martin Cooper claimed he had been unjustifiably dismissed. This case had serious implications for The Warehouse were they to lose the case as Martin Cooper had an entitlement to shares options which were potentially worth a substantial sum of money. The Tribunal found that Martin Cooper was unjustifiably dismissed and awarded him compensation and costs and the issue of the share options now also came into play.

The Warehouse appealed this decision to the Employment Court and Judge Travis held it to be a justified dismissal and Martin Cooper lost his right to his share options and ended up with many thousands of dollars of legal costs to pay to his lawyer.

This was a test case on bullying brought in the Employment Court. It was also an important case for The Warehouse in respect of future claims brought by managers who had been issued share options.

Hakuna Matata Ltd t/a McDonald’s Family Restaurant v Jefferies, WC 13/01, Judge Shaw, 14 March 2001

I acted for the employer. Mrs Jeffries was dismissed for stealing $22.40 from the Ronald McDonald House Charity monies.

The Tribunal held that the dismissal was unjustified on the basis that the employer failed to carry out a further investigation. The Tribunal’s rationale was that immediately after the employee was dismissed she raised the defence that she could have left the office door open and someone else could have taken the monies and that this should have been the subject of further investigation by the employer.

The employer appealed this decision to the Employment Court and Judge Shaw held that it was contrary to legal authorities that an employer should continue the investigation after a dismissal. The Judge held the dismissal to be justified and ordered the employee to pay $2,000 as a contribution to the employer’s costs.

In this case the employer acted on principle to defend a claim involving $22.40 charity monies that had been stolen by a manager.

Earlier Interesting cases

Hawkins v The Original Aussie Butcher, AEC 76/95, Judge Travis, 2 August 1995

I acted for the employer, Aussie Butcher. The employee, Dennis Hawkins was a manager of mature age. A butchery is a dangerous environment where knifes are strapped on a belt around the butchers' waists and band saws are in constant use. Dennis Hawkins was dismissed after provoking a physical fight with the employer’s teenage son who was a relatively new employee.

Dennis Hawkins lost his personal grievance claim in the Tribunal and then appealed the decision to the Employment Court. One of his arguments was that the employer’s son should also have been dismissed for fighting and that the employer's failure to dismiss him constituted disparity of treatment.

The Judge held the that the dismissal for assault was justified and found that this was not disparity of treatment where there was justification to support the employer’s decision to dismiss only one of the fighting parties.

In this case the employer successfully defended his right to dismiss the manager and to not dismiss his son in a circumstance where a physical fight had been provoked by the manager.

Hodgson v The Warehouse Ltd, CC 14/98, Judge Palmer, 26 May 1998

I acted for The Warehouse. Terry Hodgson was the Branch Manager of a Christchurch Warehouse Store. He was dismissed after he had been found guilty of having 300 child pornography files on his personal computer at home and of trading in these files. He was fined and sentenced to community service.

He brought a personal grievance claim for unjustified dismissal and an urgent injunction for interim reinstatement against The Warehouse.

The Warehouse has young staff and children who shop unaccompanied in their stores and the Company argued that it has a duty to provide a safe environment for these young people. So despite the criminal activity not being work-related, Judge Palmer refused to reinstate Terry Hodgson who subsequently withdrew his personal grievance claim in the Tribunal.

This was the first employment law case in the Court that involved charges of possession of child pornography and trading in child pornography files. It was also important because the allegations were wholly unrelated to the employee’s employment but were considered relevant to the question of whether he should be reinstated or not.

In this case the employer acted on principle, dismissed the employee and defended the injunction for reinstatement successfully.

South African Experience

I hold a three-year Baccalaureas Legum Civilium (Bachelor of Civil Laws or BLC) degree and a two-year post-graduate Baccalaureas Legum (Bachelor of Laws or Llb) from the University of Pretoria, South Africa. I graduated in 1986. My degrees involved a total of 28 year-courses and 3 semester courses. In 1987 I became an articled clerk serving my first year in Pretoria at Stegmanns Attorney’s, Notaries and Conveyancers and my second year in Johannesburg at Routledge MacCallums.

Sitting in the South African Industrial Court

In 1989 I was thrust into the responsible position of having to hear labour disputes, applications and urgent injunctions and make determinations as an Additional Member of the South African Industrial Court. This court had the jurisdiction of the South African Supreme Court which is at the same level as the New Zealand Employment Court. The President of the Industrial Court at that time was Dr. D. B. Ehlers, who interviewed and appointed me as part of his program of effecting an ideological shift in the court to bring it into line with democratic ideals of the emerging new South Africa. I was extremely fortunate to have had the privilege of receiving intensive one-to-one personal training and continuing mentoring in all aspects of labour law from Dr Ehlers. Initially we sat together on the bench with me writing the decisions and later I sat with other members or alone. Sitting with Hans Schoeman on 16, 19, 20 January and 10 February 1989, we reinstated 200 strikers on an urgent injunction decided on the papers (for a full discussion of the MWASA v Perskor case see below). Draconian amendments to the Labour Relations Act came into effect during 1989 causing me a crisis of conscience and I then decided to go to the Bar.

Barrister at the Pretoria Bar

I was admitted as an Advocate of the Supreme Court of South Africa in 1989. I began my four-month pupillage in September 1989 which culminated in examinations on successive days that consisted of an 8-hour paper on the drafting of pleadings and four 1-hour papers on practice and procedure. This was followed by oral interviews with the Bar Council and two Judges of the Supreme Court. Recognised as having special expertise in employment law, I however also did other work including defending over thirty murder trials and cases such as armed robbery, rape and infanticide. At the Bar I practised as an advocate (barrister-sole) until I immigrated to New Zealand in December 1993.

Assessor on the Labour Appeal Court

While at the Pretoria Bar I was asked to sit as a specialist assessor in the Labour Appeal Court, assisting and advising the judges on Labour Law. The status of the assessors in this Court was examined by the Appellate Division which found them to be full members of the Court for all matters of fact and for deciding whether the facts constituted an unfair labour practice (see Media Workers Association of South Africa & Others v Press Corporation of South Africa Limited (Perskor), 1992 (4) SA 791). This gave me experience at the highest level of judicial decision making. As an example I sat as an Assessor in the case Council of Mining Unions v Chamber of Mines of SA (1991) 12 ILJ 796 below:

Labour Appeal Scan

Independent Mediation Services of South Africa (IMSSA)

At the invitation of IMSSA, I was trained as a mediator and as an arbitrator. For example, between about December 1992 and March 1993, I decided 27 binding arbitrations (which could not be appealed) after the Transvaal Provincial Administration dismissed thousands of members of the Nurses Union for assaults and making threats to kill strike-breakers and burn down their houses.

Changing the bail onus in South Africa

In the course of my criminal work in South Africa I became increasingly outraged by the numbers of awaiting trial prisoners who had not been granted bail often for the most trivial of reasons. There were 640,000 people accused of serious crimes who went unrepresented through Regional Courts each year. More than one quarter of the prison population at that time was made up of these awaiting trial prisoners. The cost to the State was astronomical. I met with the then Minister of Justice, Kobie Coetzee and proposed that if the number of awaiting trial prisoners could be reduced then that cost saving could be diverted to the Legal Aid Board budget for legal representation. The Minister agreed to a pilot study headed by me aimed at streamlining the granting of bail and reducing costs to the Prison Services. A special Bail Court staffed by Regional Court Judges was proclaimed at the Pretoria Central Prison and I and three of my colleagues at the Pretoria Bar then consulted with the about 900 awaiting trial prisoners. Many new bail applications were brought in the cases where this was justified. It became clear that the real cause of the problem was that the onus in bail was on the accused instead of on the State. This was a contravention of fundamental human rights and I therefore recommended that a simple change of the onus in bail onto the State would radically change the numbers of awaiting trial prisoners. I also recommended that bail allocation procedures should be improved. The shift in of the onus in bail took place after I arrived in New Zealand with much complaint from the prosecution who now had to bring proper evidence to oppose bail.

The mwasa v Perskor cases

Sitting with Hans Schoeman (Additional Member) I heard the initial urgent application in a case that would become one of the most important cases in South African labour law: Media Workers Association of SA & Others v Perskor [The Press Corporation], Schoeman AM, Hartdegen AM (1989) 10 ILJ 441. We heard an application under Section 43 for a so-called status quo order which was argued with supporting affidavits before the Court on a prima facie basis without the tests usually applied for injunctive relief. This remedy was designed to provide fast relief while reinstating the workers therefore relieving hardship pending a full hearing of the case.  In practice these status-quo orders frequently resulted in no substantive hearing occurring as the disputes were often resolved by the parties in the interim. It is important to note that these orders were subject to all the checks and balances of review and appeal to the highest court.

The initial Section 43 reinstatement order, January & February 1989

The dispute first came to the Industrial Court as an application for interim relief by workers who had been dismissed after an alleged illegal strike. I can vividly remember the approximately 200 chanting workers squeezed into the Court to listen to the arguments. We granted the order reinstating the workers and our first finding was that: "(1) The right, freedom or liberty to strike, is a corollary to collective bargaining. Under all circumstances the conduct of the parties should be weighed up against the concept of fairness which is inherent to the process of collective bargaining."  This concept of "fairness" ended up being examined by the Appellate Division after a series of applications, a review and appeals that flowed from this case. Our finding was that the strike was functional in relation to collective bargaining as there was no other avenue open to the workers and we therefore deemed the strike to be legal despite it being technically illegal. This raised the question of whether a "right to strike" existed in South African law. We also held the selective re-employment of some workers to be "a stratagem" and reinstated the workers.


The interim application suspending reinstatement, January & February 1989

The Company was unhappy with these findings and brought an urgent application in the Supreme Court before Mr Justice Daniels to suspend execution of the status quo order pending a review which the Company had lodged against Hans Schoeman and myself. This urgent application suspending Section 43 order was granted in the interim but only on the condition that the monetary equivalent of the workers wages was placed in their attorney's trust account pending the review.

The review of the Section 43 reinstatement order, April 1989

The review of our initial interim order was then heard by Mr Justice Curlewis who dismissed the Company's application with costs. The allegations of bias in favour of the workers was not upheld in this review.

The Industrial Court hearing of the dispute, August & September 1989

After the first application for interim relief in the form of a Section 43 status quo order and the flurry of applications had been heard, the original dispute was finally heard by John (Additional Member) in the Industrial Court in a trial lasting about two weeks. By that time the initial reinstatement of the workers had been suspended and their monies placed in trust. After hearing all the evidence, John agreed with our initial finding that the strike was functional to collective bargaining but decided to award the workers compensation instead of reinstating them as we had done in the interim order. His reason for this was the nine months that it had already taken for the matter to proceed through the courts. To compensate for this he awarded each worker 2 weeks wages per year of service in addition to nine months wages to the date of the decision.

The workers application for interim relief, December 1989 & January 1990.

The workers immediately sought the urgent payment of the compensation which now fell due in the Industrial Court. This was opposed by the Company on the grounds that an appeal had since been lodged in the Labour Appeal Court against the finding by John at the full hearing in Industrial Court. The workers' application was dismissed but John ordered that the capital portion of the wages be held in trust and the interest which had accrued over the nine months it had taken to come to court be paid to the workers in alleviation of the hardship suffered as a result of the legal process.

The Labour Appeal Court hearing, October 1990

The Labour Appeal Court then heard the Company's appeal of the Industrial Court decision. Mr Justice Spoelstra sitting with two assessors upheld the appeal holding first that "assessors play no part in deciding whether the facts found constitute an unfair labour practice". He also found that "There is no provision in the Labour Relations Act which grants to employees 'a right to strike'. At common law there is also no such right". The findings of John (A.M.) and the initial Section 43 orders were accordingly set aside. Spoelstra J took no account of the principles of equity and the two specialist assessors who sat on the appeal dissented, agreeing only with the exposition of the facts. This opened the door to the final appeal to the Appellate Division.

The final Appellate Division hearing, August & September 1992

The dismissed workers filed an appeal against this finding, which was a strong attack on collective bargaining in South Africa. The Appellate Division sitting as a full bench of five judges heard the appeal. Mr E. M. Grosskopf JA, in the unanimous decision overturned the finding of the Labour Appeal Court on the main grounds that the Labour Appeal Court had not been properly constituted when the assessors were excluded. The Appellate Division held that the assessors were full members of the court for the purposes of deciding an unfair labour practice and other matters of fact. It held that by excluding the assessors, Spoelstra J had erred and the Appellate Division held the decision to be void referring it back to the Labour Appeal Court for a proper decision. This is a PDF of the decision.

Acknowledgements

Industrial Law Journal, Paul Benjamin, Martin Brassey, Edwin Cameron & others, eds., 1989-1991. Cape Town: Juta.

Media Workers Association of SA & Others v Perskor, 16 and 19 January; 10 February 1989.
Perskor v Schoeman NO & Others (1) 31 January; 1 February, 6 February 1989.
Perskor v Schoeman NO & Others (2) 5 April 1989.
Media Workers Association of SA & Others v Perskor, 11, 14-18, 21-25, 30-31 August; 5 October 1989.
Media Workers Association of SA & Others v Perskor, 6 December; 8 December 1989; 2 January 1990.
Media Workers Association of SA & Andere v Perskor, 5 October 1990.
Council of Mining Unions v Chamber of Mines of SA, 6 May 1991.

In the South African Law Reports, 1992 (4) SA 791.

Media Workers Association of South Africa & Others v Press Corporation of South Africa Ltd. (Perskor), 27 August 1992, 17 September 1992.