Waikato Business News January 2018

30 WAIKATO BUSINESS NEWS January 2018
Employment Court sends employee to prison
ALA (the employer) v ITE (the employee)
Unfortunately, this is
another case where
the parties have been
given name suppression, but
the story is worth telling as
it is the first time I have seen
the Employment Court order
someone to go to prison.
This didn’t happen overnight
but is the culmination of
a long story.
A complicating factor in
researching the case is that it
changed names as it travelled
through the different judicial
bodies. In the Employment
Authority it was P v Q, in
the Employment Court it was
ALA v ITE and in the Court of
Appeal and Supreme Court it
was B v ALA.
The employer is a local
authority and ITE worked for
ALA as an information technology
expert.
ITE was a disgruntled employee.
He was critical of his
manager’s competence and
of the organisation and started
doing what he considered
necessary to hold them to
account. ALA became concerned
that he was accessing
the computer system and deleting
data without authorisation,
some of which belonged
to other local authorities, so it
embarked on an investigation
and suspended him during the
process. The police were also
called in to conduct a criminal
investigation and searched his
home where computers were
removed for further analysis.
This led to ITE being charged
with damaging or interfering
with a computer system and
accessing a computer system
without authorisation, although
these were withdrawn
some time later.
During the course of the
employment investigation,
ITE’s lawyer proposed a negotiated
settlement to end the
matter. The settlement was
signed by the parties and confirmed
as final, binding and
enforceable by a mediator
from Ministry of Business, Innovation
and Employment.
The agreement included
terms in which [ITE] promised
to keep certain matters
confidential and [ALA] agreed
to pay him… tens of thousands
of dollars. It was money paid
in return for a promise about
future behaviour.
The confidentiality clause
was extensive and included an
agreement that ITE would not
disseminate or disclose to any
third party (verbally or otherwise)…
investigation data…
and any other information…
related to his employment…
whether or not that information…
related to the employment
investigation.
Within six months, ITE had
set up a website, prepared a
video in which he set out his
explanation of events, and his
perception of what had occurred
and why. He made that
video available via his website
and sent emails to a large number
of [ALAs] staff and to staff
of other organisations, inviting
them to view the video.
ALA commenced proceedings
in the Employment Relations
Authority to enforce the
confidentiality agreement and
to have the video taken down,
and sought penalties for the
breach.
ITE argued that the confidentiality
clause didn’t apply
because the issues in the video
were about the police investigations
not the employment
investigation, the information
was now in the public domain
so was no longer confidential
and that any confidential information
not covered by the
previous arguments was only
a minor technical breach of
the settlement. He also said
he was entitled to freedom
of speech under the Bill of
Rights. But if he wanted to express
his views, he shouldn’t
have entered into a confidentiality
agreement.
The video was 35 minutes
long and, according to
the website it documents the
management failings, money
that was spent, the NZ police
involvement and other matters
around what happened behind
[ITE’s] sudden departure.
Little did he realise, that
this was just the start of a long
judicial experience for the parties.
The three hearings in the
Employment Relations Authority
in 2015 culminated in
an order for ITE to remove the
posts from the website and to
HR AND THE LAW
> BY ANNE AITKEN
Anne Aitken, HR Professional | Email: anne@anneaitken.co.nz
cease communicating with any
third parties about the matter
and to pay a penalty of $6000
to the Crown for breach of
the agreement. He was firmly
told that failure to comply
could result in a fine of up to
$40,000 or a prison term of up
to three months. Furthermore,
he was ordered to pay $15,000
in costs to the employer, to defray
their $86,000 in pursuing
the case.
Instead of complying with
the Authority, ITE ramped
up his efforts to disseminate
the information and posted
material to Facebook and put
a series of documents on a
cloud-based facility with access
provided to other people
and emailed the newly elected
councillors in 2016. He was
fined $7500 for this breach.
Next he sent flash drives
with his story to the chief executives
of several local authorities
and published six You-
Tube videos. Further action
was initiated in Court and he
was reminded of the potential
outcome if he persisted. The
day after being served with the
Court action, ITE sent more
information to candidates of
previous local body elections
with links to the videos. There
were more appeals for action
from the employer and more
stern words from the Judge, all
to no avail and ITE continued
to contact people and promote
his view.
A further court hearing
ensued and ITE was required
to comply with taking down
the websites. He declined to
confirm immediately that he
would do so, leaving the Judge
to make a decision on further
sanctions.
The history was one of repeated
flouting of the compliance
orders. ITE had failed to
pay $138,000 fines and costs
ordered against him, such that
ALA had him declared bankrupt,
so the Court was left with
little option but to sentence
him to an immediate term in
prison of 21 days and to pay a
further $48,000 in costs.
In total the taxpayer has
provided the venue for three
hearings in the Employment
Relations Authority, ten in the
Employment Court, and one
each in the Court of Appeal
and the Supreme Court, all of
which agreed with the original
decision.
The bottom line is, when
the Authority orders you to do
something, it is best to comply.
Kennards
Hire
Kennards
Hire
Kennards
Hire
Kennards
Hire
07 849 2818
S4964C
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www.hamiltonwindscreen.co.nz | info@hamiltonwindscreen.co.nz
2/12/10 9:23:50 AM
2/12/10 9:23:50 A
2/12/10 9:23:50 AM