Western Institute of Technology at Taranaki v Parr
For many years employers felt powerless to push back with employees who were out of line but there is an increasing number of employers who are taking action against ex-employees who are causing harm.
There are two significant cases working their way through the courts currently. One is Crimson Consulting Limited v Berry which bought a competitor business and employed the owner who subsequently resigned and went to another competitor. They are seeking to impose a restraint of trade and are seeking damages and are currently working through the Employment Court with a series of hearings, initially over confidentiality of information. A second spat between ITE v ALA (publication of the names is prohibited) has been to the Court of Appeal and Supreme Court and is back in the Employment Court. Ex-employee ITE published a series of Youtube videos and Facebook posts that were critical of the employer and breached the Court’s non-publication orders. The Employment Court has had two hearings dealing with an application to direct the removal of the on-line material and is now addressing the breaches of the earlier judgements.
This story of Mrs Angela Parr and Western Institute of Technology (WITT) is a more succinct episode. Mrs Parr was the personal assistant to the chief executive at WITT and therefore had access to the most sensitive information about the organisation. She left the organisation in 2013 and reached a settlement for a personal grievance which stated, as most agreements do, “Mrs Parr will not make any negative or disparaging statement publicly about WITT or any of its officers or employees… Mrs Parr also acknowledges that if she breaches this clause…she may be liable to penalties and compensation.”
In February 2016 (two years after signing the settlement) a letter was sent to the Minister for Tertiary Education and the Shadow Minister raising a number of issues about WITT that were described as of grave concern to so many who were at present unable to speak or take action due to confidentiality agreements and ongoing court cases. The letter was signed by F Jacks. A further letter by the same person was sent in May to the Minister, the TSB Community Trust and the Bishop’s Action Foundation referring to the earlier letter and disparaging the chair of WITT who was associated with both recipient organisations.
The letter was sent in a hand written envelope and when shown to the CEO she thought the writing was familiar, checked Mrs Parr’s personal file and thought she found a match. Samples of handwriting were sent to two experts for assessment and the experts concluded they were probably from the same person. WITT then sent the documents to the senior document examiner at the Police National Headquarters who concluded they were from the same person, Mrs Parr.
Mrs Parr was approached by WITT and told to desist. She denied being the author of the documents so WITT approached the Employment Authority seeking a direction that Parr not breach the settlement again and seeking penalties for the breach.
The first step in this process was to determine if the letters breached the term of no disparaging comments. Not only did the Authority conclude that some of the comments were disparaging, so did Mrs Parr. Through a process of deduction, the Authority concluded that because of the content cross referencing, the letters had to have been written by the same person, Mrs Parr was the person who wrote one of the letters, therefore she was the person who wrote all of them.
WITT was successful in having a further order of compliance issued and was awarded penalties of $6000 from a possible maximum of $20,000 ($10,000 for each breach). The issue of the level of costs Mrs Parr would be required to pay WITT was reserved, but there would be an expectation of a significant contribution. The decision also reinforced that the agreement not to make disparaging comments did not expire.
The cost of this exercise for WITT would be substantial but it was unavoidable to stop the continuing damaging actions of a disaffected ex-employee who had been in such a trusted position.
It is unusual these days for disparaging material to be sent by post, most of it is being done on-line like with ITE v ALA. It has far wider reach and the potential to go viral so employers are forced into taking action to address it rather than letting some grumpy sod mutter into their beer and anyone who would listen, as would have happened in the past.