In the last month two employment disputes that featured physical assaults were determined by the Employment Relations Authority (ERA). The most recent was a Hawkes Bay farm which has a pseudonym “DGE” due to a non-publication order.
The other also has links to Hawkes Bay but happened in Nelson. No assault convictions have been recorded in either case although we understand that a trial for one is imminent. The two determinations are poles apart and we may have to follow up depending on any future Employment Court decision.
The non-publication order extends to the claimants AKO and CJV who are a married couple who both worked on the farm, and QEU, who despite having allegedly assaulted AKO, remained an employee of AKO at the time of the 10 April investigation meeting.
[14] AKO’s evidence of the assault was that it involved at least one physical punch to the head that knocked him off the quad bike he was sitting on with several further blows to his head while he was on the ground. The matter was never investigated and QEU did not give evidence so it was not possible to ascertain exactly what happened but DGE accepted it was serious and unacceptable.
DGE could have summarily dismissed QEU for serious misconduct but chose to let him work out his two weeks period of notice after resigning, and AKO and CJV reluctantly agreed not to resign on that basis. For context, dismissing a farm worker for serious misconduct is not as simple as dismissing an office worker, given that the job required the employees to live in rented accommodation on the estate.
What happened next was a poor decision that ended up costing DGE – it took pity on its punchy employee QEU due to undisclosed personal circumstances, and allowed him to extend his notice period indefinitely on the condition that he look for another job.
That meant that AKO was forced to continue working with the man who assaulted him on the job, albeit mostly separated due to re-allocation of duties, which affected AKO’s mental health. AKO and his wife CJV resigned claiming that they had been constructively dismissed and ERA Member Sarah Kennedy-Martin agreed, awarding compensation, lost wages and penalties of just over $67,000 to AKO and CJV, plus a further $8,000 penalty to the Crown.
“Negligent retention” is not a term we often see in New Zealand’s employment jurisdiction but could be applied to what happened here. With that said, a serious incident was mishandled, and the outcome was a lot more costly than it should have been.
Here’s another case involving a couple, Keith Hill and Kaye Thomas, although neither were directly involved in an assault that happened several weeks before the ERA investigation meeting.
The minimum wage from 1 April 2023 was $22.70 per hour. Keith Hill was the Nelson branch manager of Cookright in mid-2023 and was paid just under $60,000 for an average 50 hour week, or about $1 above minimum wage.
Unsurprisingly he resigned. Equally unsurprisingly, his replacement was paid more.
Hill’s partner Kaye Thomas has two jobs, one as a GST registered sole trader trading as A1 Vat Services, mostly doing commercial cleaning. She employed Hill when he left Cookright doing mostly the same work as Cookright. Cookright applied for an injunction to have Hill ordered to comply with a restraint of trade clause that covered more than 95% of the country for two years, citing Fuel Espresso Ltd v Hsieh [2007] NZCA 58 to assert that no consideration is required to support a valid noncompete clause. Hill was not in sufficient health to properly engage with the proceedings, and underwent a hip operation in January which put him out of action for a few months, independently of the noncompete dispute.
A localised injunction was granted in December 2023 and expired in mid-2024. Thomas had a young woman working for her during this period. In April 2024 there was an incident involving her and two male employees of Cookright, during work hours and with the Cookright brand on display, which resulted in the male employees being charged for male assaults female. We have been provided with camera footage of the incident.
We understand they have pleaded not guilty, a trial is pending, and the alleged offenders currently remain employed by Cookright. Through its lawyer Megan Inwood, Cookright told us it had no comment to make on the incident or its effect on the civil proceedings.
The ERA held an investigation meeting in May during which a Calderbank offer was made where Cookright would not pursue damages if Thomas leaned on her (by then former) employee to drop the assault charges, and close down the majority of her business. Thomas refused, and was subsequently ordered to pay a $6,000 penalty to Cookright for aiding and abetting Hill’s breach of the restraint of trade clause. Hill himself was ordered to pay a $8,000 penalty and nearly $15,000 in damages – this is the guy who was paid about $1 an hour above minimum wage, remember?
Thomas had brought footage of the assault to the investigation meeting, but Member David Beck didn’t want to see it. Perhaps unsurprisingly his determination has been challenged to the Employment Court and a result could be several months away.
That is, unless Cookright manages to settle to prevent the Court, and then the media from airing its dirty laundry!
Tristam Price, Editor
Vat wars escalate in the Upper South - 24 August 2024
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