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Respect is a two way street: Employers who set themselves above the law

1 November 2017


Two recent employment cases have given cause for concern about the respect some employers are giving to our courts.

In the case of Enayet Uddin, his employer openly expressed contempt for the "employment authorities". Uddin was employed by HD Security Services in Auckland as a security officer.

It was clear there would be trouble following a series of bizarre actions by his employer.

On commencing employment, Uddin was required to pay his employer $250 for his uniform, but never received it.

Uddin worked 25 hours over 3 weeks but never received payment.

He was promised an operations manager job if a client was happy with his work. Uddin understood the client had given good feedback for his work and tried to meet with his manager, Sean Michaels, to discuss the job and payment for the work already done.

Michaels, however, kept cancelling appointments and refused to even divulge the location of the company's office. Instead, Michaels emailed Uddin with an "offer of employment" from the director of operations, but it was just a blank employment agreement.

Uddin had still not received payment for his work so he went to the company accountant's residence. He was given a cheque and payslip but when he went to bank the cheque it was dishonoured.

Sensibly, Uddin stopped working for the company from this this point. When Uddin sent Michaels a text message seeking payment, he was told "check your bloody account tomorrow morning". However, there was still no payment received.

As Uddin continued to pursue payment, Michaels became increasingly abusive, calling Uddin "f... ass" and saying he ought to "f... off".

Michaels also directed ethnic slurs towards Uddin with comments like "go back to your f..... up country asshole" and "No wonder Bangladesh is f..... up with people like you".

When Uddin indicated that he intended to file proceedings in the Employment Relations Authority, Michaels replied "To be clear, I'm not trying to stop you from laying a complaint to the employment authorities. Please do. I'm not scared of those f... wits. Show them this text".

Admirably, Uddin did not react to any of these text messages.

Uddin did file proceedings and the employer failed to appear before the authority. Uddin sought exceptionally modest remedies, which were granted.

He was awarded $540 in unpaid wages, an order requiring the repayment of $250 for the uniform that he never received, $2250 for hurt and humiliation (which was more than Uddin claimed) and a penalty of $1000 to be paid to Uddin.

One wonders if the money was ever paid, given the attitude of the company and its officers.

The remedies paid to this man seem extremely modest. Perhaps the authority could have been more active in granting more adequate remedies, despite Uddin's modest expectations.

Another case of an employer demonstrating disregard to the courts is that of Broadspectrum, formerly called Transfield Services.

Jason Nathan was employed by Broadspectrum in Wellington as a lines mechanic.

Nathan was dismissed by Broadspectrum on the grounds that he had carried out electrical work without first turning off the electricity.

Nathan challenged his dismissal at the Employment Relations Authority on the grounds that he had followed the correct procedure for shutting the power off.

Proceedings were eventually heard by the Employment Court, which ordered Broadspectrum to reinstate Nathan to his former position.

Despite the order, Broadspectrum refused to allow Nathan in the workplace unless he underwent medical examination. The court issued a compliance order saying that Nathan's reinstatement was not conditional on medical examination.

Nathan completed the medical examination in any event and presented himself for work.

Broadspectrum then required him to undergo weeks of testing and appraisals as if he were a new, inexperienced employee, despite his qualifications.

The Employment Court imposed a fine of $10,000 for breach of the compliance order, half of which was to be paid to Nathan.

Not long after the second compliance order was given, Nathan was told there was no work for him to do and he spent his time reading text books.

Broadspectrum claimed that they weren't convinced it was safe for him to do actual work and tried to make him do other work outside his job description.

The court found that the company was trying to decide themselves whether or not the court would be obeyed and they were fined a further $25,000; $10,000 of which was to be paid to Nathan.

Such sustained disobedience of court orders is very rare and it is clearly quite wrong.

The Employment Relations Act provides that where a compliance order is disobeyed the court may sentence the person in default to imprisonment for up to 3 months, or order that the person in default be fined up to $40,000 or all of the property of the person in default may be sequestrated.

These measures would only be used in extreme cases.

For many employees it is hard to bring claims to the Employment Relations Authority. Perhaps even more so for Uddin, who was self-represented.

For both Nathan and Uddin, their employers appear to have set themselves above the law which is intolerable in New Zealand. We are all subject to the rule of law.

To have an employer treat the institutions of law in the way these two defendants have, is deeply disappointing and makes it difficult for plaintiffs to achieve justice, financially and emotionally.

Employers should be aware that where they have potentially breached employment law, their actions may come to light and their reputation may be harmed.

It is a good rule for employers to always try do right by their employees; particularly when ordered to do so by the courts.

Fortunately these two employers are the exception. Overwhelmingly, employers respect the law.

Cullen - The Employment Law Firm is one of only eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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