| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2012] NZERA Auckland 22 |
| Determination date | 18 January 2012 |
| Member | E Robinson |
| Representation | R Lee ; J Douglas, A Russell, M Quigg, D Gee, G Service, A Galbraith, G Burt |
| Location | Auckland |
| Parties | Aarts v Barnardos New Zealand and Ors |
| Other Parties | Commissioner of New Zealand Police, Ministry of Social Development, the Privacy Commisioner, the Ombudsman, the Serious Fraud Office, the Director of Human Rights Proceedings, the Independent Police Conduct Authority, Lance Lawson Barristers and Solicitors |
| Summary | PRACTICE AND PROCEDURE – Determination of preliminary matter – Applicant sought to join parties to proceedings – Matter determined on papers – Applicant claimed second to tenth respondents (“other respondents”) variously conspired to deceive, acted in bad faith, used undue influence, falsified documents and failed to act – Other respondents claimed application out of time and Authority had no jurisdiction to address claims – Order prohibiting publication of names of children counselled by applicant or any identifying evidence – Authority found as other respondents did not have employment relationship with applicant applicant’s claims best dealt with as claim other respondents incited, instigated, aided or abetted breach of employment agreement (“EA”) under s134 Employment Relations Act 2000 (“ERA”) – Applicant’s duties included facilitation of family violence programmes – Complaint alleged applicant inappropriately touched, was too close to and offered food to children at family violence programme – Complaint based on interview recordings - Second respondent (“Police”) investigated allegations, no charges laid but Police told first respondent (“Barnados”) of allegations – Second allegation made two months later - Applicant dismissed – Applicant claimed interview recordings concealed from applicant – Applicant claimed s134 ERA reference to “aiding and abetting” included party who helped criminal conceal crime – Found s134 ERA reference to “aiding and abetting” could include conduct occurring after employment relationship terminated – Found however in current matter applicant needed to show alleged “aiding and abetting” arose before or during applicant’s dismissal - Whether second respondent (“Police”) and third and sixth respondents (“MSD”) incited, instigated, aided or abetted Barnados in alleged breach of applicant’s EA - Found as substantive matter yet to be heard Authority could not determine whether Police or MSD complicit in alleged breach - Whether claim against Police and MSD outside 12 month period – Found applicant aware when dismissed dismissal based on complaints received by respondent – Found applicant’s claim for penalty outside 12 month period even if Authority accepted applicant only became aware of cause of action at later date – Found applicant time-barred from bringing claim against Police and MSD – Applicant sought order that Police provide copies of interview recordings – Police claimed disclosure of interview recordings prohibited and discovery unavailable where penalty claim - Found Authority’s jurisdiction subject to general law of discovery that party could object to production where might expose party to penalty – Found no grounds to order that interview recordings be produced by Police and claim also time-barred – Whether fourth respondent (“Privacy Commissioner”), fifth respondent (“Ombudsman”), seventh respondent (“Serious Fraud Office”), eighth respondent (“Director of Human Rights Proceedings”), ninth respondent (“Independent Police Conduct Authority”) and tenth respondent (“Lawson”) incited, instigated, aided or abetted Barnados in alleged breach of applicant’s EA - Applicant claimed document supplied by Ombudsman had been edited and reprinted – Independent Police Conduct Authority claimed unaware of any investigation relating to applicant – Found no evidence Privacy Commissioner, Ombudsman, Serious Fraud Office, Director of Human Rights Proceedings or Independent Police Conduct Authority had knowledge of applicant’s employment relationship or any contact with Barnados prior to or during alleged breach of applicant’s EA - Found Privacy Commissioner, Ombudsman, Serious Fraud Office, Director of Human Rights Proceedings and Independent Police Conduct Authority did not incite, instigate, aid or abet alleged breach of EA – Found no evidence Lawson deliberately intended to interfere with applicant’s EA to applicant’s detriment – Found Lawson did not incite, instigate, aid or abet alleged breach of EA – Whether claim against Lawson outside 12 month period – Found applicant time-barred from bringing claim against Lawson |
| Result | Application dismissed ; Costs reserved |
| Main Category | Practice & Procedure |
| Statutes | Crimes Act 1961 s66;Employment Court Regulations 2000 r39(2);Employment Court Regulations 2000 r40;Employment Court Regulations 2000 r41;Employment Court Regulations 2000 r42;Employment Court Regulations 2000 r43;Employment Court Regulations 2000 r44;Employment Court Regulations 2000 r45;Employment Court Regulations 2000 r46;Employment Court Regulations 2000 r47;Employment Court Regulations 2000 r48;Employment Court Regulations 2000 r49;Employment Court Regulations 2000 r50;Employment Court Regulations 2000 r51;Employment Court Regulations 2000 r52;ERA s134(2);ERA s135;ERA s135(5);ERA s160(1)(a);ERA s160(1)(f);ERA s174;ERA Second Schedule cl5;ERA Second Schedule cl10(1);Evidence Regulations 2007;Official Information Act 1982;Privacy Act 1993;Privacy Act 1993 s82(3) |
| Cases Cited | Credit Consultants Debt Services NZ Ltd v Wilson (No 3) [2007] ERNZ 252;Musa v Whanganui District Health Board [2010] ERNZ 236;New Zealand Air Line Pilots Association Inc v Jetconnect Ltd (No 2) [2009] ERNZ 207;New Zealand Baking Trades Employees Union (Inc) v Foodtown Supermarket Ltd [1992] 3 ERNZ 305 |
| Number of Pages | 25 |
| PDF File Link: | 2012_NZERA_Auckland_22.pdf [pdf 122 KB] |