OPINION

Where has the natural justice in New Zealand gone?

Thursday 26 June 2008, 11:05AM
By Darren Hatton
1347 views


The night before Anzac Day on a TV police programme it showed a drunken thug who, on-camera abuses the Police, admits theft and selling drugs on TV whilst resisting arrest, costing us tax-payers untold expense in Police time and resources as he gets taken into custody and locked up… he gets fined $200. Yet, for what amounts to an error in grammatical semantics with a written warning, I incur a fine of $6000 from the State coupled with direct legal costs of circa $15,000 defending numerous blatant lies from a dismissed employee who presented an “honest grievance” to a “philosophically sympathetic” department of Government.

My small home business gets a $6000 fine ordered by the State, for what amounts to me to be a mistake in grammatical semantics with the eventual dismissal of an employee. Plus, I have to also wear direct costs of approximately $15,000 in legal fees and over 2 years of stress and angst through this unduly prolonged judicial process.

How is this fair? Where has natural justice in New Zealand gone?

Some people have cautioned and advised me not to publish this – as it will likely come across as being “bitter and twisted” or just re-igniting the rumour mill where half-truth’s and deliberate lies have already been sown in my marketplace. Perhaps so… and so be it if that’s what happens, as people often form opinions before they even know half a story, so informing the marketplace as to the exact facts will hopefully help to set the record straight, but also open the public’s eyes to the inherently evil legislation and judicial process that NZ employers have had forced upon them.

Remembering and honouring my grandfather on Anzac Day, who fought as an ANZAC so fellow New Zealander’s could live free and have the right to free speech, on this day as I battle costly, unjust politically slanted laws, has reminded me of the saying, "The only thing necessary for evil to flourish is for good men to do nothing." (Edmund Burke)

At a time when I have been constantly over-taxed to fund an ever-growing, morally bankrupt government, that pays no heed to it’s own laws and in fact retrospectively changes laws to avoid prosecution on itself, whilst blindly and doggedly adhering to it’s own socialist agenda’s to maintain power at all costs – it’s about time I shook off my own silence about my own unjust situation and speak up – instead of doing what thousands of other decent Kiwi’s have done by voting with their feet and flocking off to Australia.

The vast majority of NZ business’s are in the small / medium size bracket – yet our Government with their political & ideological sympathies create employment laws designed to heavily favour employees, whilst creating a completely unfair & unbalanced workplace situation against the business owner …and my story is just one of many echoed around the country by many employers, which I now wish to share and put it into some context…

Through years of hard work, sweat and tears and much sacrifice, I developed my business from nothing, to an extent where I could create another new job for someone. I gave this individual a chance – like someone once gave me - welcomed him into my small home office, provided 6 month’s of continuous training and support, yet despite this, he simply couldn’t achieve, minimum standards of professional business conduct required. Two weeks after committing the same “gross misconduct” he had received a detailed and final written warning for, he committed the exact same misconduct again, whilst trying to claim almost $6000 in sales commissions not due (and receiving payment for half) and as a result of him still not following detailed written instructions and procedures after 6 month’s of trying, we had no other option but to dismiss.

The Employment Relations Authority found that his dismissal was “unjustified’ because his written warning was “intertwined as a performance - related disciplinary procedure, when the process should have focused on conduct related to performance”

Mere grammatical semantics, in my view – as the essence and context of the situation and his understanding of what he was doing wrong and the substance of the subsequent warnings were perfectly clear and never disputed or doubted. He received numerous verbal warnings, a Final Written Warning – then, 2 weeks after his Final Written Warning – he committed exactly the same transgression, with this time also trying to claim almost $6000 in commissions not due (and receiving payment for half) on “sales” not completed. The ERA elected not to elaborate or investigate about the almost $6000 in commissions claimed for – yet not due.(With half that amount paid out)

As I had made an “error” in his Written Warning, this was enough to invalidate my entire disciplinary process, thereby ruling his dismissal “Unjustified”

As a result of this “Unjustified dismissal” the ERA said he should be awarded lost wages of $2500, because the directly competing business he set up 2 weeks after his dismissal – using resources and confidential knowledge gleamed from his employment with my business – hadn’t earned him any money. (Yes, that’s right – because he wasn’t able to legally steal business away from me & my team with his new business – I should pay him wages he couldn’t earn through the competing business he had set up using my IP and resources, without permission and knowingly against his legal and moral obligations.) The ERA also ordered I should pay him $3500 for injury to his feelings since he was “Unjustifiably Dismissed”.

The ERA did find he wilfully breached a number of non-solicitation and restraint of trade clauses in his employment contract and awarded a total of $1750 to be paid by him to the State. But why not to me & my team where the breaches were inflicted upon?

I was awarded a contribution towards costs of $750. My total legal costs alone reach circa $15,000 – let alone any of my time, worry, stress and loss of focus and business over the 2 years it has taken to deal with this judicial Investigation.

I could contest and fight this determination. Although at a further cost of another $15,000 plus and with no guarantee of any success at the outcome, I might only get awarded another $750 towards costs… and only then if I did “win”. But like the saying goes… “The only thing necessary for evil to flourish is for good men to do nothing."

I personally can’t fight this evil legislation anymore. I don’t have the time, savings, or energy to battle a biased State providing a Personal Grievance gravy train to the Unions as a complicit sop in return for their support come election time.

But what I can do though is put some further information out into the public domain now that this case is public and I can finally get my side of the story out.

So my point is – where has natural justice in NZ gone? What about intent? Does intent not play any part in NZ legal proceedings? Or is it only slanted against employers in employment law? If an “investigation” by the ERA is to be full and proper, why was no 1st hand accounts allowed and only answers to very specific questions tolerated? And only selective aspects of events investigated? Surely employers are also entitled to prompt hearings/justice; and not to be intimated as a guilty criminal until proven innocent during this overly long judicial process?

He was found to have wilfully breached a number of clauses in his employment contract, but myself or the families working for me don’t get any remedy or compensation for our “injury to feelings” we experienced or for the business he attempts to steal from our mouth’s, possibly undermining the viability of my business which supports a number of families. Where is the balance? Where is the natural justice?

As a tax payer for over 20 years, I create an employment opportunity for someone new to NZ, give them a break, provide 6 month’s of continuous training, they don’t measure up and because of what effectively amounts to a mistake in grammatical semantics – after circa $15,000 in legal fees and 2 years of judicial paperwork to compile and file, I get fined a total of $6000 by the State to pay him.

Two weeks after his dismissal, with no other prior industry experience, he registers a company in direct competition to mine, contravening numerous confidentiality and privacy clauses in his employment contract including a restraint of trade of 6 month’s. He gets fined $1750 to pay with these blatant and wilful breaches… but that fine goes to the State.

I get a contribution towards costs of $750.

The drunken thug who, on-camera abuses the Police, admits theft and selling drugs on TV whilst resisting arrest, costing us tax-payers untold expense in Police time and resources as he gets taken into custody and locked up… he gets fined $200. Yet, for what amounts to an error in grammatical semantics with a written warning, I incur a fine of $6000 from the State coupled with direct legal costs of circa $15,000 defending numerous blatant lies from a dismissed employee who presented an “honest grievance” to a “philosophically sympathetic” department of Government.

What the hell is going on with our justice system? By any measure, $200 v’s $6000 fine and the rationale behind the fines, are completely unfair to any business owner / employer who shoulders untold risk and investment only to be thoroughly mistreated by a Government philosophically opposed to business / capitalism.

Where is the incentive for business owners / employers to shoulder risk / investment when having to deal with this sort of State sponsored “legislation” heavily slanted against business.

No wonder so many frustrated and decent, hard-working Kiwis’ are tired of New Zealand and are flocking off in their thousands for Australia!

Further details on this case can be found at www.ema.co.nz/advice/Bulletin_Vol_20_No_15_25_April_%202008.pdf