Penalty to be paid to trust

The Employment Relations Authority has directed that a former employee of the Work Opportunities Trust pay a $1500 penalty to the Dunedin-based trust, after breaching part of an earlier settlement.

In a recently-released written decision, authority member Helen Doyle found that a clause had been breached in the terms of settlement between the trust and former employee Robin Fitzpatrick.

Mr Fitzpatrick was also ordered to pay the trust $1821.56 in costs and disbursement of the filing fee.

The trust's purpose was to support individuals with disability into ''meaningful open employment''.

The trust had applied to the authority and said the breach had occurred during a conversation between Mr Fitzpatrick and two of its employees during a Chamber of Commerce Business After Five event late last year.

The two trust employees recalled Mr Fitzpatrick had said he did not care ''if I've been paid to shut up''.

He also said he had been previously assaulted by a staff member, and he could approach a government agency about matters involving the trust's clients.

The employees both said some of the comments were ''derogatory in nature''.

Representing himself during an authority investigation meeting in Dunedin, Mr Fitzpatrick said he may have stated some ''home truths'', but his remarks were ''puffery and jocular in nature'' and he would have never followed through on them.

He had also said: ''I'm sorry but I have a gagging order and you can reach your own conclusion on that''.

Ms Doyle said in her ruling that although Mr Fitzpatrick may have considered his comments ''jocular or puffery'', they had been ''taken seriously'' by those to whom he was speaking.

Mr Fitzpatrick had said he did not ''undermine the trust or its staff and business'' to any third party, including because the two employees he had spoken to were themselves part of the trust.

But Ms Doyle said the comments were damaging or had caused injury to the trust manager's reputation, and the conversation had been overheard by at least one third party.

The trust and Mr Fitzpatrick had entered into agreed terms of settlement on June 14 last year, which were signed by a mediator.

The settlement's first clause required that the settlement's terms and all matters discussed in mediation remained confidential to the parties.

The settlement provided for a compensation payment to Mr Fitzpatrick on a ''no acceptance of liability'' basis and he was to be paid to the last day of his employment, on June 11, 2012.

He was also to receive a record of employment ''detailing his performed tasks''.

Clause three of the settlement provided that compensation was being paid on the basis that the employee ''undertakes not to undermine the employer's clients, staff and general business in any way to any third party''.

If there was any evidence of this, ''the compensatory sum of $5000'' would be immediately payable to the employer, the clause indicated. Ms Doyle found clause three had been breached, but the $5000 amount was ''a penalty and not enforceable''.

She awarded a $1500 penalty under the Employment Relations Act, and directed that all of it be paid to the trust.

Ms Doyle also made an order requiring immediate compliance by Mr Fitzpatrick with clause three.

The trust was given 14 days from the date of the determination to provide a record of employment if it had not already done so.

Add a Comment