This is a story with a happy ending. As with fables, it has a simple moral, but unlike fables, it is not a myth.
In 1996 employers Jayne Routham and Steve Murphy, of Masterton, sacked an employee. Stephen van Beek admitted he had been stealing stock from Routham and Murphy's pizza business, Enzo's Pizzas, and pleaded to keep his job. But Routham says they wanted someone they could trust, so they sent him packing and hired another worker instead. You guessed it, van Beek sued them for unjustified dismissal and the usual hurt feelings, etc., which are routinely tacked onto this litigation. Two years later, in June 1998, after they, lost the case through mediation, the Employment Tribunal, Judge Goddard of the Employment Court finally ruled they were justified in sacking van Beek, and overruled the Tribunal's decision to award him $4500. The Tribunal member, Fiona McMorran, had ruled in van Beek's favour, stating he was entitled to believe he could legitimately help himself to his employers' pizzas, and other foodstuffs. No one had told him otherwise and he'd seen Jayne Routham taking pizzas home. As Glanville Somerset would have observed, if van Beek had seen Steve Murphy giving Jayne Routham a cuddle, would McMorran rule that the employee was entitled to help himself to his boss' body? Must employers put in writing every single thing their staff may not do to avoid having their businesses go up belly-up in the make-it-up-as-you-go rules of the Employment Court? Routham and Murphy eschewed lawyers and handled their own defence. They won, but their dream of running their own business has been ruined, and their entrepreneurial spirit, so desperately needed to change attitudes in this country, has been crushed.
Two years ago Routham and Murphy got themselves off the dole and into business, when they bought a small pizza business. They could make it successful, they decided, if they both worked full-time, but with two small children, aged six months and 18 months, they chose to employ a third full-time worker to give themselves a break. They'd done a small business course, they swatted up about employment rules, and how to choose the right staff, and after interviewing a number of people selected van Beek. "He seemed a good guy," says Routham. "Good with the customers and did the job quite well." But three months later, they suspected stock was going missing, did a stocktake and confronted van Beek with the result. "At first he had all these excuses," says Routham, "but then he said, 'to tell you the truth, I took them home.' He wanted another chance but we figured if someone will rip you off when you're new to business and still struggling, then they're sure as hell going to rip you off when you're doing well."
The next day van Beek visited the Masterton Community Law Service, and Routham was summonsed to a meeting there, with her former employee, his two representatives and his sister (who Routham says had received a substantial payout through the Employment Tribunal some years earlier). At the meeting Routham offered van Beek his job back until the "missing stock" fiasco was "sorted out", but van Beek told her he didn't want his job back, "he said he wanted $2000, so I told him, like, pigs will fly." The Community Law Service advised her they would take the matter further, which they indeed did, with a member of the CLS, St Clair McIntosh, setting herself up as an "Employment Court specialist" and becoming van Beek's legal representative for the ensuing litigation.
"Then we had to go to mediation, and what a gross waste of time that was," says Routham. "I did offer him $500 to get out of our face but it was not accepted. At mediation he admitted that Steve had caught him stealing an ice-cream sundae, but right in front of the mediator he said, 'so what?' St Clair McIntosh put up the case that he was unfairly dismissed because he didn't believe he was doing anything wrong."
Six months went by before the case came before the Employment Tribunal. Meanwhile Routham got a quote from a Masterton lawyer to represent them: $5000 to take it to the Tribunal and a further $7000 if it went on to appeal at the Employment Court. She decided to represent herself. "I bought a copy of the [Employment Contracts] Act, reread all the guff from the Labour Department, and I thought we had a very good case. He tried to say he could take pizzas because they are perishable products, but then he also admitted he was taking cheese and tomato sauce, and they are classified as perishable...Six weeks later I open the envelope with this 10 page decision and I'm so nervous I have to get a friend to read it. She reads through and all the time it sounds like we're winning then at the end he's awarded $4500. I was livid. I walked straight out of the house and had to go away to cool off. Then I wrote to everyone I could think of, pointing out the injustice here — Wyatt Creech, the Minister [of Employment, Max Bradford]; I even wrote to the Prime Minister. The decision [by Fiona McMorran] stated things like: Ms Routham admitted taking home pizza in a box. Excuse me, it was our business, I didn't admit to anything! He doesn't see me go to Moore-Wilson with a cheque for $600 to buy the stuff!"
But van Beek hadn't won, yet. Routham decided to take it to appeal, but by this stage, she said she was a nervous wreck. So she joined Toastmasters to learn how to speak properly, and "to put my case better." She spent hours writing up all her submissions, on a typewriter because she couldn't afford a computer. "I went on what I knew to be right, not all this legal rubbish. Justice is justice...and I must say, I drew inspiration from Lindsay, listening to the Politically Incorrect show and fighting things like the broadcasting fee. I thought, yes, I can do it." Meanwhile, however, she was ordered by St Clair McIntosh to pay the money to van Beek, on the understanding that if she won at appeal, then she would have to get it back from him. "I abused her so much, told her it was under appeal, and she threatened us with things like having our house sold. So I had to go to a 'Stay of Proceedings' at the Employment Court, and have had to pay $10 a week to the Court." (This will now be reimbursed to Routham, who intends going for costs.)
Routham demanded the case be heard by Chief Employment Judge Tom Goddard. He'd presided over the Stay of Proceedings and Routham said he asked intelligent questions, "and I listened very carefully to what he said. I didn't want some idiot hearing the case again." She wrote a note for herself which she placed on the lectern: Keep calm; right is on your side; everyone is thinking of you. "I was so pleased with myself. I was so calm and I spoke so well. Because we represented ourselves, the judge gave us some leeway. Van Beek's representative argued that he was under the misguided belief he could take pizzas home, and also because we gave him one salami, he was entitled to assume he could take anything else he wanted."
Even though she won this case, Routham and her husband have already been beaten, in a way, by the system; a system which, as she says, rewards people for stealing. "This first started just three months into our new life as business people," she explains. "It has so affected Steve and I, our families and therefore our business that I ended up just hating running Enzo's. It's not the amount of money, so much — we could have afforded to pay [the $4500] although it would be a lot out of our cash flow, it's just having that fight at the back of your mind all the time. If I had to pay him $1 I would have been pissed off. The day after I found I'd lost the first case [at the Tribunal] we put the place on the market. It takes a lot of energy to go into business and risk everything and the whole unfairness of all this just destroyed that energy."
Enzo's was sold just after Routham and Murphy went to the Employment Court, with settlement and possession taking place on 1 June this year. Steve Murphy has been working full-time in Wellington for the last 18 months, and Jane Routham stopped hiring full-time workers, electing instead for casuals. As she expostulates, "That's why there's so many casuals in this country, and so few full-time jobs — laws like this make it too risky to hire someone full time!" For the past six months she says she worked seven days a week, while her mother looked after her children, and took home $10,000. She insists it's not the hard work she's complaining about — "I could have done it without this awful thing hanging over me all the time. It became a psychological hate thing — not against him [van Beek], but against what I was having to fight."
When the decision came through from Judge Goddard, Routham was over the moon with delight, though still bitter it took so long for them to be exonerated. She now wants business people, big and small, to fight every similar case which comes their way and not, as many large businesses do, write out cheques for a few thousand dollars without putting up a defence. The classic sanction of the victim. "I want employers not to wimp out at mediation. If you don't want to use a lawyer, you don't have to. I put stuff in my submissions that will make a difference for small businesses now that Judge Goddard has ruled in our favour. For instance, he told me in court that usually you can't seek costs when you handle a case yourself, but since we'd had to take time out from our business, to represent our business, then in this instance we could go for costs."
Routham is right. If more businesses had fought these outrageous claims back when they started coming before the Employment Tribunal, then the system of a separate "special" court for employment matters may have been scrapped. Their capitulation only strengthens the cases for the parasites — disgruntled employees, their "legal representatives" and lawyers all — who use the Employment Contracts Act against the creators of employment. Max Bradford, Minister of Labour, certainly won't help, judging by his latest (13 May 1998) comments: "The latest pamphlet is just another phase of a disgraceful misinformation campaign being conducted by a few unions to scare workers rather than inform them."
The pamphlet, published by the Canterbury Combined unions, claimed the government was planning to dismiss workers at will, refuse to recognise unions, cut all rights to redundancy pay, abolish the Employment Tribunal and Court, abolish the minimum wage, and slash workers rights to leave.
What a pity the union was wrong.
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