A tribute to Chief Judge Colgan – his legacy lives on
The Chief Judge of the Employment Court, Judge Colgan, retired in 2017 after being on the bench for 28 years. The current employment landscape in New Zealand owes much to the Chief Judge’s temperance and his steady and fair hand in deciding cases, and his legacy remains in the many decisions he made while on the bench that stand as precedents.
Since the introduction of the Employment Relations Act in 2000 and the creation of the Employment Relations Authority, Judge Colgan has been vocal about access to justice in the employment arena, expressing his concern that employees cannot under the current regime afford the costs of taking cases against employers.
At his valedictory sitting, the Chief Judge again spoke about the problem of access to justice. He also said that he anticipated that in the future there would be an increase in contractors bringing actions to have their status declared as employees. He further talked about the need that International Instruments to which New Zealand is a signatory, such as the Universal Declaration of Human Rights and International Labour Organisation Conventions, be complied with in employment situations.
This was very heartening for me, as it referenced two cases in which I represented employees who both had been unsuccessful in their personal grievance claims. The first case brought by a contractor against Visionstream Pty Ltd, a subcontractor to Chorus, resulted in Chorus actually making changes to the way they expected the contractors to work, and quite tellingly no costs were claimed by the company against the employee. This indicated that Chorus’ senior management knew full well that they had been treating contractors like employees and that the claim brought against Chorus had been a valid claim and it should have succeeded.
In the second case, Stevens v Hapag Lloyd (NZ ) Ltd, had her Honour Judge Inglis, as she was then, proactively enforced the International Instruments that we are signatories to as highlighted by Judge Colgan, the claim would have succeeded.
The applicant was the Imports Manager. Due to a hire freeze, they could not appoint someone new as Sales Support Manager after that employee resigned some six months earlier; thus fewer employees had to do more work, and the managers were doing the hands-on work with their staff, not only their management duties.
Senior management decided to restructure the applicant’s department, moving two of her staff to work under the Export Manager and declaring her Import’s Manager role redundant. She was told that she would become the Sales Support Manager, a position she declined given her career had been in Imports and she was not interested in working in Sales. Eventually, the General Manager fired the applicant and refused to pay her 26 weeks’ redundancy compensation after her nearly ten years’ employment.
The applicant’s employment contract contained a provision which provided that:
“… you shall not be entitled to redundancy compensation in the event that you are offered reasonable and alternative employment, on substantially the same terms and conditions”. The applicant maintained that the work of the Sales Support Manager role differed substantially from her role and that she was entitled to her redundancy compensation.
Hapag Lloyd is a European-based, international company. The company’s Code of Ethics document states that the company complies with all International Instruments.
In her claim, the applicant relied on the principle of “the freedom of choice of employment” as contained in Employment Policy 1964, No. 122, which forms part of the ILO Conventions and was ratified by NZ in 2008. This principle is enshrined in numerous other international covenants such as The International Covenant on Economic, Social and Cultural Rights which states under Article 6: “Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right”.
Let us put our trust in the future and hope that the new Chief Judge will pro-actively lead the Court, and that we can look forward to more enlightened decisions recognising international labour standards and rights.