News
Threats of intimidation at work
First published in The Independent, 28 May 2008.
The Godfather will surely be remembered as Francis Ford Coppola's finest work.
Not only did the movie deservedly win an Oscar for best picture, it represented an accurate portrayal of Mario Puzo's exposé of the Mafia in America.
One of the memorable features of the movie was the modus operandi of Don Corleone: if he required somebody to do something, he simply "made them an offer they couldn't refuse".
The statement wasn't intended to convey an expression of generosity, of course. It was the euphemism used to indicate the use of an intimidating threat – injury or death.
So, surely this is the stuff of movies? Can it happen that threats of physical injury are part of an employment relationship?
Well, according to a recent decision of the English Employment Tribunal, it seems that they occasionally might be. Including (rather remarkably) during the hearing of an employment dispute.
The claimant in Force One Utilities Limited v Hatfield (Unreported, Employment Appeal Tribunal, 22 April 2008) took a case for unfair dismissal. He represented himself. The employer was represented by a lawyer.
A hearing took place before the Employment Tribunal. The case was heard over the course of an afternoon, after which it was adjourned.
At the end of the day, one of the employer's witnesses – who was also an Executive Director of a related company – was party to an unfortunate incident. He confronted Hatfield and said "You've got one over on me today, you won't get one over on me again. You're getting no [expletive] money out of me."
The matter did not end there. As Hatfield went to his car the same man called out to him "watch how you sleep at night, I mean it" – and then made what appears to have been an invitation for Hatfield to meet him for a physical fight.
Wisely, Hatfield declined the invitation and (obviously shaken) went back inside the Tribunal building. As it happened, the members of the Tribunal had witnessed the entire incident – probably to their horror.
The relevant question for the Tribunal was what to do in light of the incident. It was something which – in the interests of justice – could not be ignored. Equally, it was a matter which was unrelated to the merits of Hatfield's case. What to do?
The answer was to punish the employer for its conduct on the basis that the manner in which the case had been conducted was "scandalous, unreasonable or vexatious".
The Tribunal rationalised that the conduct was such that it was impossible to conduct a fair trial.
This decision was upheld on appeal. The Employment Appeal Tribunal concluded that the employer's threats had to be taken seriously – and that there were reasonable grounds to conclude that a fair trial would no longer be possible.
Fortunately, cases of this kind are rare. Amongst other things, a litigant that behaves in this way may commit a criminal act – which is, of course, a rather imprudent thing to do in or around a court room. It is quite possible that, under New Zealand law, someone behaving this way could find themselves arrested on any number of different grounds.
And it is likely that, should the same thing occur in this country, a similar outcome would be generated (albeit possibly on a different basis). The Employment Relations Authority is entitled to give regard to a party's conduct at hearing and assessing the merits or otherwise of a particular case.
Indeed, a party's conduct may, in itself, constitute a breach of the obligation of good faith which is owed as part of the employment relationship. An interesting question could, however, arise where the employment relationship is over – and the claim is for unjustified dismissal (as it was in this case).
Further – and possibly ironically – intimidatory conduct such as this could defeat the primary remedy provisioned for in the employment legislation – namely, reinstatement. Put simply, an employee subject to this type of behaviour may no longer wish to be reinstated in his or job – thereby meaning that the behaviour could act as a de facto means of excluding reinstatement as a remedy.
It is likely that a tribunal would seek to find solutions to these different issues – which may include some form of punitive remedy, and/or order against the blameworthy party. Fortunately, however, this is not a situation which occurs commonly in New Zealand.
