Male Assaults Female charges were laid as a result of an incident captured on security camera in April.
The young woman, who had just arrived at a Nelson recycling depot and was still sitting in the driver’s seat when allegedly assaulted, was an employee of Kaye Thomas trading as A1 Vat Services. The alleged offenders, currently on bail, are employees of a rival business called Cookright Filtering Services Ltd.
The footage provided to Police is a lot clearer than the above screenshot suggests. The boys are on bail and a trial will most likely be several months away. Perhaps unsurprisingly, the female victim left A1 Vat Services and even Nelson soon after the incident.
What does this incident have to do with employment law?
Noncompete dispute in the ERA
About a month after the alleged assault, A1 Vat Service’s owner Kaye Thomas, Cookright’s co-director Stephen McMullen and Cookright’s lawyer Megan Inwood attended an investigation meeting before David Beck, Member of the Employment Relations Authority (ERA) in Nelson. This is where things get weird.
The female assault victim had originally been hired by Thomas to replace Keith Hill, who was subject to a restraint of trade injunction that was about to run out. We reported on Cookright’s successful application for the injunction in December. But McMullen was not there to placate Thomas in relation to the assault on her then employee and her subsequent resignation – he actually turned up with his hand out.
Cookright was claiming damages, penalties and costs in relation to the restraint of trade dispute. Beck made his determination a few months later, awarding damages of $14,854.38, a $8,000 penalty against Hill, and a $6,000 penalty against Thomas for aiding and abetting Hill’s breach of the noncompete clause in his employment agreement.
Thomas had brought footage of the alleged assault to the investigation meeting - evidence that might have supported her assertion that financial awards were not appropriate, but this evidence was not accepted. We note that Beck had been brought in at short notice to replace Member Antoinette Baker and suspect that he had little time to prepare.
But there is an appeal path, so it’s too early to say whether Cookright should be celebrating its success in the ERA. Cookright may also have fallen foul of Section 134A of the Employment Relations Act, which states:
134A Penalty for obstructing or delaying Authority investigation
(1) Every person is liable to a penalty under this Act who, without sufficient cause, obstructs or delays an Authority investigation, including failing to attend as a party before an Authority investigation (if required).
(2) The power to award a penalty under subsection (1) may be exercised by the Authority—
(a) of its own motion; or
(b) on the application of any party to the investigation
There are a couple of Section 134A examples that have been reported by mainstream media, and us.
Intimidation
Two former employees were threatened at the behest of Chirag Ahuja, whose company was in liquidation at the time making him personally liable for back wages and holiday pay. Judge Perkins stated:
[7] In respect of the first former employee (employee A) who claimed to be threatened, the following was alleged:
(a) She had been summonsed by the Labour Inspector to give evidence before the Authority on 5 October 2016.
(b) On the night of 3 October 2016 she was at home with her family.
(c) At 10.30 pm that night, a man visited her home and spoke to her and her husband at the doorway.
(d) The man had facial tattoos; one of them across his nose with the words “Black Power”.
(e) In conversation, the man told her that she should drop the court case…
…
[12] In respect of the second former employee (employee B) who claims to have been threatened, the following was alleged:
…
(c) On the afternoon of 4 October 2016, the landline in the shop where she was then working rang…
(d) A man she did not know was calling and he knew her name.
(e) He stated to her that he was a Black Power gang member…
You get the idea, readers?
The ERA had previously awarded a penalty of $20,000, but the Court reduced it.
[45] Insofar as the penalties are concerned.... While undermining the course of justice is a very serious matter, there is no evidence of any previous actions of this kind on Chirag Ahuja’s part. I consider that an appropriate penalty would be $6,000 in respect of each of the two employees involved, making total penalties of $12,000.
C-Suite Stalker
Cardiac physiologist and whistleblower Ana Shaw was dismissed from Tauranga in 2015 and brought personal grievances against BOP DHB, in the ERA. It took 3.5 years for the matter to progress to an investigation meeting. Shaw, through her then advocate Allan Halse, filed photographic evidence of BOP DHB’s then COO (later CEO) Peter Chandler stalking Shaw outside Spotlight Tauranga, Shaw’s workplace at the time, a few months before the October 2018 investigation meeting.
We understand that Halse did not specifically raise Section 134A when filing that evidence. But BOP DHB retaliated by applying under Section 134A for a finding of contempt, penalties and costs against Shaw and Halse within a week of successfully defending Shaw’s grievance.
Shaw challenged the dismissal of her grievances to the Employment Court, and in February 2022 the Court found against her. But in the meantime the retaliatory “contempt” proceedings were removed to the Court, and were run separately from the grievance. A preliminary hearing on 29 June 2020 (which the writer attended) into whether it was within the ERA’s power to make certain directions that would have effectively made it an offence to report stalking was decided on 22 September 2020 as per the above link (which references Section 134A 19 times). Mostly, Judge Corkill agreed with the ERA, although the merits of BOP DHB’s claim were not really assessed.
The proceedings ran for more than five years and cost the taxpayer more than $600,000+GST before mostly collapsing into an anticlimactic Judicial Settlement Conference in February 2024. A related misinformation page disappeared soon after.
The 2018 stalking activity Shaw experienced was similar to what Keith Hill and Kaye Thomas endured since mid-2023, and while they didn’t specifically invoke Section 134A, the alleged assault (leading to the victim’s resignation soon after) is in a completely different ballpark.
Possible grounds for counterclaim
Thomas may have a counterclaim against Cookright on the basis of its vicarious liability for its employees’ conduct that caused the victim to resign, which in turn damaged Thomas’s business. As to the damages and penalties, it is difficult to see how the Employment Court would allow those to stand.
Ex-boss had assault victim’s back
Yesterday Cookright’s counsel replied to further enquiries and her instructions are that Cookright has no further comment on the matter. But we understand that Kaye Thomas was praised by Police for refusing to sell her financial exposure (which we now know to be $6,000 excluding costs) in exchange for leaning on her recent ex-employee to drop the assault charges. We have seen the offer and question its legality.
As the ERA member didn’t want to discuss criminal matters and mainstream media has so far been happy to rely entirely on the publicised ERA determination, Cookright so far appears to have dodged a bullet, at least on paper.
But was this a smart business decision to protect market share, however ruthlessly? It looks personal.
Tristam Price, Editor
See also: Vat Wars escalate in the Upper South (24 August)
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