All too often there are reports of migrant exploitation, usually in relation to minimum employment entitlements, but there still remain workplaces in New Zealand where workers suffer other unlawful abuse.

Last week the Employment Relations Authority found that an Invercargill dairy farmer had breached "numerous minimum employment standards" including manipulating payslips and unlawfully deducting money from the wages of three workers that came from Indonesia between December 2017 and February 2022. The farmer was ordered to pay over $215,000 in respect of the breaches.

But it is not only breaches of minimum entitlements that are an issue in our workplaces. In February this year the Human Rights Review Tribunal issued a decision finding that Itwinder Singh was racially harassed by his employer Stephen McKee.

Mr Singh worked for approximately 10 years as a stable hand for a thoroughbred racehorse training business that was owned initially by Mr McKee’s late father and from 2017 was owned by Mr McKee.

Mr Singh claimed that during his employment Mr McKee subjected him to racial harassment in breach of the Human Rights Act as he commented on and made fun of his Indian accent, made belittling remarks about Indians and objected to him and other staff speaking Hindi, telling them to speak English at work.

To be successful in his claim Mr Singh needed to establish on the standard of the balance of probabilities (a legal test that it happened) that:

• Mr McKee used the language complained of;

• The language either expressed hostility against Mr Singh or brought him into contempt or ridicule on the ground of his race, or ethnic, or national origin (being Indian);

• The language was hurtful or offensive to him; and

• The language was either repeated or of such a significant nature that it had a detrimental effect on his employment.

The Tribunal was satisfied that Mr Singh had established that Mr McKee:

• Regularly made remarks about Mr Singh’s accent, including making fun of it and mocking or imitating his accent

• Often objected to Mr Singh and other Indian staff conversing in Hindi and insisted that they speak English, including “C*** talk in English, I am paying you in dollars not rupees”; and “oi, I have told you c***s to speak in English at work”

• Made comments to Mr Singh that “It wouldn’t matter if an Indian dies, there would still be a billion left” and “How much do I owe you, $5 or $10, isn’t that what you get in India ”

In mitigation of this behaviour, Mr McKee acknowledged Mr Singh as being highly educated, highly intelligent, a New Zealand citizen who was not in the category of vulnerable employees who have a language difficulty, or lack education, or are subject to visa restrictions or requirements.

The Tribunal concluded that Mr Singh was racially harassed and that Mr McKee had breached the Human Rights Act. It said that Mr McKee had used language that brought Mr Singh into contempt and ridicule on the grounds of his race and ethnic or national origins. It found that the language used was hurtful and offensive and that it was repeated and had a detrimental effect on Mr Singh’s employment.

When it came to considering compensation, the Tribunal found the racial harassment Mr Singh was subjected to was not particularly hostile, but he had been subjected to it in his workplace by his employer repeatedly over nearly two years. As a result of the harassment the Tribunal accepted that Mr Singh had suffered humiliation, loss of dignity, and injury to his feelings and awarded him $10,000 compensation.

Most New Zealanders would consider, what Mr McKee described as “workplace banter”, as being abhorrent. While Mr Singh was able to stand up for himself, there will be far more that simply tolerate such behaviour because they are reliant on their job. It should not just be the Human Rights Tribunal that calls out such conduct, hopefully our workmates would do the same. Read more....

"Justice delayed is justice denied" is a legal and societal saying. It means that if legal redress to an injured party is available but it takes too long to achieve it, it is effectively the same as having no remedy at all.

The then Chief Justice of the United States, Warren E. Burger, noted in an address to the American Bar Association “the risk is that people come to believe the law – in the larger sense – cannot fulfill its primary function to protect them and their families in their homes, at their work, and on the public streets”.

In the recent decision of the Employment Court in Ugone v Star Moving Limited Judge Smith imposed a $20,000 fine on Stuart Biggs, the director and shareholder of Star Moving for his continued non-compliance with Court orders, and warned him that if other cases came before the Employment Relations Authority or the Employment Court for not complying with orders that he faces a serious risk of a custodial sentence.

Tovio Ugone was employed by Star Moving as an Operations Manager based at its Wellington Depot. Mr Ugone suffered a knee injury at work in June 2020. He could not work and went on ACC and was unable to return in any capacity until 13 August 2020.

After providing Star Moving with a letter confirming that he could return to work on restricted, sedentary, duties, Mr Ugone was provided with a letter stating that due to his extended absence and a restructuring of the Wellington Depot, that Star Moving had decided to disestablish his role as Operations Manager.

Mr Ugone claimed that he was unjustifiably dismissed. The Employment Relations Authority found that the letter provided to Mr Ugone amounted to a “sending away”; that Mr Ugone was unjustifiably dismissed. Mr Ugone was awarded $28,000 for lost wages, $27,500 compensation and costs of $5,000 (a $6,000 penalty was also imposed on Star Moving for failing to supply Mr Ugone’s employment agreement).

When Star Moving failed to pay, Mr Ugone asked for compliance orders from the Authority. When making the compliance orders in May 2023 the Authority was also satisfied that Stuart Biggs, as the sole director of Star Moving, was responsible for the earlier orders not being complied with and that he was in a position to prevent further non-compliance by the company; compliance orders were made against him personally.

Despite the compliance orders the debt owed by Star Moving to Mr Ugone was still not paid until August 2023, just before liquidation proceedings involving Star Moving were to be heard in the High Court.

Mr Ugone asked for further remedies against Star Moving and Mr Biggs; a fine and a custodial sentence were requested.

Where any person fails to follow a compliance order made by the Authority, the person affected by the failure to comply can ask the Employment Court to exercise its powers under the Employment Relations Act to order that the person in default:

• to be sentenced to imprisonment for a term not exceeding three months;

• order that the person in default be fined a sum not exceeding $40,000;

• order that the property of the person in default be sequestered.

The Court of Appeal has confirmed that a fine may be imposed even where compliance had been achieved, although that is be a factor in assessing the amount of any fine. Similarly, cases also confirm that it is not necessary for a party to first try and get enforcement in the District Court before requesting a fine in the Employment Court.

In another case, a fine of $7,500 was imposed for what the Court considered was a deliberate and flagrant breach of the compliance order. The former employee had forwarded emails containing links to confidential documents to newly elected members of the employer (a local authority). Even that was not enough of a deterrent in that case, a further decision was necessary as the Court’s two previous financial orders had failed to stop the employee. The employee was sentenced to a 21 day term of imprisonment.

Returning to Mr Ugone’s situation, in imposing the $20,000 fine on Mr Biggs the Court referred to a number of decisions involving other parties involving Mr Biggs that it said showed a theme that companies Mr Biggs controls do not comply with orders made against them unless under compulsion. The Court said that this must influence the amount of uplift in the fine.

For Mr Ugone the law has fulfilled its primary function of protecting legal rights. Mr Ugone was successful in his claim in the Authority. Mr Ugone has finally been paid for the wrong-doing that occurred in 2020. Mr Biggs has now been fined, and has been warned that a custodial sentence may be imposed should there be further non-compliance. While Mr Ugone has had to go to extraordinary lengths to get his debt satisfied, maybe justice has been done? Read more....

Published Human Resources Magazine Autumn 2024

Successful businesses tend to be agile and adapt to changing circumstances. Finding the right solution for the employer is as important as managing the change to resolve the situation.

Failing to manage that change may result in the employment relationship being terminated with the employer facing substantial claims, as the employer found in the recent case of LNF v Department of Corrections in the Employment Relations Authority.

In 2019 Corrections advertised a role with a position description that was dated 2007. The intention was for the role to be split 80% in one team and 20% in another team, and while it required some administrative work in both teams the work was at a more senior level. While it was the intention to explain the position more thoroughly through the interview process, this was not successfully communicated.

Corrections has a complicated organisational structure, which was further complicated with managers and staff being seconded into alternative positions for periods of time. The situation became “messy” within the first few weeks of LNF’s employment. LNF started raising issues with her managers about her role, including where she sat in the team structure. There was additional conflict with a colleague regarding boundaries between their two roles, with the colleague believing that LNF was stepping into her role.

Her manager saw the situation as a personality conflict and suggested that LNF move into his team. LNF was not persuaded that the move would improve the situation. Matters came to a head and there was an altercation between LNF and her colleague. A mediation was proposed, but LNF was not prepared to attend mediation.

LNF was moved into her manager’s team on a full-time basis. Although her manager believed that all the parties were content with the arrangement, LNF continued to have an issue with the lack of clarity she perceived in her role. Her manager tried to define what work LNF had been doing and to find meaningful full-time work for her. He started discussions about “how do we fill in your day” and discussions regarding a job description. LNF started to look for other work at Corrections because she felt like she was still getting caught in the crossfire.

A formal letter was given to LNF offering her a variation of employment with a confirmation of duties. LNF did not agree and contacted her union. Numerous meetings where held with LNF and her representative. LNF received a payrise, the explanation being that there were no performance issues as there was no job description to measure performance against. Mediation was again discussed.

LNF’s managers then considered disestablishing the type of role LNF was employed to do on the basis that the support in the region was more administrative than advisory. LNF was the only employee in that type of role in the region, so LNF was the only employee effected. LNF provided feedback that the current state was that the role she was employed to do did not exist; that she had worked in an undefined role; and that her manager had failed to actively and constructively remedy this for two years. She said that the proposal had been specifically drafted to remove her from the organisation.

After a mediation was attended, LNF was advised that her role was disestablished and Corrections would work with her to explore alternatives. There was no discussion with LNF about redeployment, partly due to there being no agreement about her tasks. Months later LNF received a formal notice of severance.

LNF raised personal grievance claims and argued that Corrections used a restructure process to terminate her employment, following a long-lasting and unresolved employment relationship problem.

The Employment Relations Authority agreed, and found that the redundancy was not genuine and was used to justify the termination of LNF’s employment. LNF was awarded 6 months lost remuneration and $23,000 compensation.

As part of its reasoning it appears that the Authority thought that Corrections could have initiated a formal review of LNF’s role, and the basis of the review findings would have supported Correction’s position. The Authority appears to have significantly downplayed the many discussions that were held with LNF regarding her role and attempts to find her meaningful alternative work.

The decision demonstrates that it is important in change management to clearly understand the issue, identify possible options and engage promptly with staff likely to be effected.   Read more...

Human Resources Magazine

Peter Boshier has been the most recent Chief Ombudsman for New Zealand. His appointment in December 2015 followed a distinguished career as a Judge. In May 2020 he was reappointed for a second five-year term.

Boshier turned 72 last week on 16 March. "The law is that I must resign from office upon reaching the age of 72” he said.

New Zealand’s Constitution Act recognises three branches of government; Parliament, the Executive (Ministers and government departments), and the Judiciary. Each operates independently of the others, commonly called "the separation of powers".

The Chief Ombudsman is one of three officers of Parliament independent from the Executive. The other two are the Parliamentary Commissioner for the Environment, and the Controller and Auditor-General. Neither of those two roles have a mandatory retirement age.

In the Judiciary, judges must retire from full-time judging at the age of 70, although they may be appointed for a further two years on an acting-warrant. It is said that security of tenure (permanent appointment), with a compulsory retirement age, are key protections for judicial independence.

Chief Executives in the Executive branch of government (government departments and crown entities) have no such security or independence. Under our Public Service Act and Crown Entities Act chief executives are appointed for terms of no more than 5 years, although there is the possibility of reappointment. Of course, this is an easy way to remove a Chief Executive who is perceived as being too old to do the job.

For our Members of Parliament there is no mandatory retirement age, although they do need to secure their seat in Parliament for the parliamentary term.

Our current Deputy Prime Minister turns 79 next month and is our oldest person ever to lead a party back to Parliament and into power (as part of a power sharing arrangement). His nearest rival was Labour’s Sir Walter Nash was 75 when he won the 1957 election. After being Prime Minister, Nash did go on to stay on as a Member of Parliament until his death at the age of 86, making him our oldest parliamentarian.

In the United States, President Joe Biden and his predecessor, Donald Trump, are set for an election rematch in November after clinching their respective parties’ nominations.  The contest will be between two candidates that many opinion polls suggest that many voters do not want. At 81, Biden is already the oldest president in US history with Trump being only a few years younger at 77.

Trump is facing 91 felony counts in four criminal cases, involving his handling of classified documents and his attempt to overturn the 2020 election, among other alleged crimes. Biden potentially faced charges over his handling of classified documents. However, the Special Counsel appointed to investigate decided not to bring charges. He cited Biden’s memory lapses in a bombshell report. His report described Biden as a “well-meaning, elderly man with a poor memory”, who “did not remember when he was vice-president” or “even within several years” when his son Beau had died.

For most of us in New Zealand, age is a prohibited ground of discrimination under the Human Rights Act, the Employment Relations Act, the Residential Tenancies Act and the New Zealand Bill of Rights Act.

However, there are a few limited exceptions to this. There may be a particular age or a particular age group that has a genuine occupational qualification for employment. For example, some foreign countries prohibit pilots-in-command aged above 60 years from operating certain aircraft. In this situation, it may be justifiable for an airline to establish a policy which prohibits those over 60 from holding that position.

At the other end of the spectrum, New Zealanders have to be 18 years old to vote for our Parliament. The minimum legal age of marriage is 18 years. However, a person from age 16 can be married with consent from a Family Court judge.

For young workers under the age of 18, the law is fraught with exemptions. School-aged students (under the age of 16) work hours must be outside of school hours and must not be between 10pm and 6am. There is a special exception for the agricultural sector which allows young people doing contract work who are over the age of 12 years to use tractors for agricultural work provided they are fully trained or they live on the property. An under 14-year-old cannot work as a babysitter or nanny without adult supervision because it’s an offence to leave any child under 14 unsupervised. An under 15-year-old cannot work in hazardous worksites such as a logging site or construction site. To join the Defence Force a person must be at least 16 and a half to submit an application and must have turned 18 by the time they graduate from the recruit course.

We may throw comments around such as “70 is the new 50” or “age is just a number” but the reality is that our age may be important. Of course, those age barriers are potentially discriminatory.  Read more....