No one else to blame

July 30th, 2013 at 9:00 am by David Farrar

Stuff reports:

A worker, who was fired after his boss saw Facebook photos of him at a waka ama championship when he was meant to be at home sick, faces bankruptcy if hit up for legal costs.

Bruce Taiapa, of Gisborne, must pay his former employer, Turanga Ararau, $12,315 after he took the training institute to the Employment Relations Authority. It ruled the institute was entitled to sack him because he misused his sick leave. He appealed to the Employment Court, and lost that appeal.

So he took the case, lost it, and appealed, lost that, and is now complaining he can’t pay the legal bills.

Wouldn’t it have been a better idea to just accept the (justified) sacking and look for another job? Or not to have pulled a sickie and facebooked photos of you away at a sporting event.

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34 Responses to “No one else to blame”

  1. David Garrett (7,289 comments) says:

    Social media has opened up a whole new area of employment law. The basic principles are exactly the same, regarding the relevance of out of work conduct on the employment relationship for example, but these media provide a motherlode of pontential info on employees which employers can quite legally access.

    There are already some interesting cases in New Zealand but the best ones come from the US…One silly girl went on Facebook telling all her “friends” what a creep and sexual harasser her boss was, and making specific allegations of sexual harrassment of herself by him. Problem was she had forgotten she had added the boss as one of her 700 close friends, and he duly read it…. and that the boss was openly gay, and had been for years.

    The real game changer of social media though is that nothing will ever go away…

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  2. Positan (390 comments) says:

    Thanks to Labour’s idiotic invention of Treaty “principles,” this is but another instance of Maori presumption of entitlement, now ingrained by the absurd generosity of the 3rd round of overblown Treaty settlements.

    This wanker should be forced to make repayment on a drip-feed basis if necessary, rather than be permitted to escape his obligations through bankruptcy – which, as a former employee rather than a former trader, would be almost meaningless.

    In the good old days, default debtors were imprisoned. Cretins like this one who ran up debt, unconcerned by the possibility he might become liable to meet it, doesn’t deserve any break. Worse, any concession to him would be a bad example to other such free-loaders.

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  3. Muzza M (291 comments) says:

    What Positan said.

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  4. RRM (9,924 comments) says:

    :-P Chur!

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  5. xy (187 comments) says:

    I’m down with debtor’s prison as a bankruptcy replacement, as long as we ditch limited liability for shareholders too. Not paying my invoices because your company’s out of money is no excuse, you dick.

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  6. Sir Cullen's Sidekick (890 comments) says:

    Wait for Labour’s Jacinda Ardern to come swinging for this poor fellow and blame it on John Key….

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  7. Alan (1,087 comments) says:

    “Thanks to Labour’s idiotic invention of Treaty “principles,” this is but another instance of Maori presumption of entitlement, now ingrained by the absurd generosity of the 3rd round of overblown Treaty settlements.”

    I find it profoundly disappointing, yet at the same time entirely unsurprising that someone comes on and makes a racist comment on this topic.

    Yeah, he has a Maori sounding name, but really, what does that have to do with the story ? It’s just a straight forward employment law in the age of social media story.

    Dog whistling ?

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  8. MT_Tinman (3,188 comments) says:

    The story states this fellow has property he can borrow against to pay his bill.

    He simply doesn’t want to.

    I have no sympathy!

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  9. Manolo (13,780 comments) says:

    His “whanau” claim he’s a clever boy, an exemplary worker, a great father and pillar of society.

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  10. David Garrett (7,289 comments) says:

    Well, I am as harsh a critic as anyone of the flourishing treaty grievance industry…but I am not sure that has anything to do with this case…he was employed by a Maori focused training organization….how do treaty principles impact here?

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  11. SW (240 comments) says:

    Positan – Labour did not ‘invent’ the Treaty “principles”, they originate from the case New Zealand Māori Council v. Attorney-General. Legislation has been passed by both Labour and National that recognise the “principles”.

    Regardless, what the hell does this story have to do with the Treaty of Waitangi? You are extremely ignorant if you think that people escaping their obligations through bankruptcy is limited to Maori and is in some way caused by the Treaty of Waitangi.

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  12. David Garrett (7,289 comments) says:

    SW: Can’t argue with that…

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  13. cha (4,019 comments) says:

    Linda Gates and Lynne Snowdon weren’t honoured with a post about their financial woes. Wonder why?.
    //

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  14. scrubone (3,099 comments) says:

    http://www.kiwiblog.co.nz/tag/lynne_snowdon

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  15. scrubone (3,099 comments) says:

    You can see the bankrupcy lists here:
    http://www.insolvency.govt.nz/cms/support/news-and-public-notices/public-notices

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  16. Chuck Bird (4,888 comments) says:

    I wonder what advice his lawyer gave him. I would hope the decision of the employment court in this case should have been obvious but one never knows. Perhaps, his employer was required to give him so many verbal and written warnings. I have read of such decisions. I would hope his lawyer would have given him an honest assortment of his chances of success and the livelihood of costs if he was unsuccessful. He should have been given this advise whether he asked for it or not.

    I know in matrimonial cases many lawyers will take on hopeless cases knowing they personally cannot lose if they make sure their fees are in their solicitors trust account in advance.

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  17. gravedodger (1,566 comments) says:

    Wouldn’t a superb cultural opportunity such as Waka paddling not have been worthy of a bit of time off from his employment?

    Expanding horizons, team building, enlightening experience of the other world, and if all else fails there is always the Tangi with a simple spelling mistake of a H for T, afterall it is only one down and one to the right. Simple mistake anyone could make.

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  18. edhunter (547 comments) says:

    From memory he applied for & got annual leave, at some point he asked for more leave & was denied, it was at that point he decided to say fuck you I’m sick, I cant make it in.
    Dont know how you could give verbal/written warnings for such a breach of trust & contract

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  19. labrator (1,850 comments) says:

    Great to see you can at least still fire people for something, even though the company did get dragged through the courts forever. Imagine if this was a mum & dad business, they wouldn’t have had the cash or time to let it get that far and that’s not fair.

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  20. Black with a Vengeance (1,865 comments) says:

    STOP THE PRESS!!!

    Kiwiblog commenter found to be ignorant racist.

    who woulda thunk? :)

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  21. adze (2,126 comments) says:

    I’m sure I’ve seen adverts for lawyers offering to take employment law cases on a no win no pay basis. Why didn’t this guy use one of those outfits?

    Maybe they realized he wouldn’t have a show.

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  22. Longknives (4,753 comments) says:

    Why didn’t he just invent a fictitious deceased ‘Great Aunty’ and take a month’s ‘Tangi leave’ like such people usually do?

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  23. duggledog (1,558 comments) says:

    Good job. What a loser

    Alan I’d venture the guy being Maori has a lot to do with it.

    He hopes / assumes that because his employers are Tangata Whenua it would be sweet as bro.
    His employer hopes / assumes he won’t take the piss because he’s Tangata Whenua and it would be sweet as bro.

    Hoisted by their own petards. The employer will never see a red cent

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  24. Manolo (13,780 comments) says:

    I reckon BWAV, the Pasifika ignoramus, would’ve done exactly the same!

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  25. lastmanstanding (1,297 comments) says:

    BTW can someone point me to both the Principles of the Treaty and a full and clear explanation of them.

    No thought not doesn’t exist except in the minds of the politically correct and the culturally stupid.

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  26. SW (240 comments) says:

    Hi Lastmanstanding.

    Our Court of Appeal decided that on the following as Treaty Principles:

    The acquisition of sovereignty in exchange for the protection of rangatiratanga.
    The Treaty established a partnership, and imposes on the partners the duty to act reasonably and in good faith.
    The freedom of the Crown to govern.
    The Crown’s duty of active protection.
    The duty of the Crown to remedy past breaches.
    Māori to retain rangatiratanga over their resources and taonga and to have all the privileges of citizenship.
    Duty to consult.

    What are your thoughts? Are there any you disagree with?

    Like any area of law, a full explanation is more difficult and not something you can produce on a blog. Here is a summary of statements by the Courts, the Waitangi Tribunal, and the Government regarding the ‘Treaty Principles': http://www.waitangi-tribunal.govt.nz/doclibrary/public/Appendix(99).pdf

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  27. OneTrack (3,107 comments) says:

    Alright, I’ll ask. What would have happened if the employer hadn’t been tangata whenua?

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  28. SW (240 comments) says:

    Is there a legal distinction between an employer that is tangata whenua and an employer who isn’t?

    My understanding is that if an employee dishonestly takes sick leave when refused annual leave it will often be grounds for dismissal. Provided the employer follows a fair procedure (such as not firing the employee before investigating and getting the employees side of the story), the employee really has no grounds to stand on.

    What do you think would have happened OneTrack?

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  29. adze (2,126 comments) says:

    SW you seem to have at least a better understanding of Treaty Principles than many of us here. A genuine question then, if you don’t mind: In terms of those Principles, what happens if a situation develops where there is the potential for a direct conflict between Iwi-self management, and they Crown’s duty of active protection?

    I wouldn’t like to imagine how such a situation might arise, but I’m curious how it might be resolved at least in principle?

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  30. SW (240 comments) says:

    Hi adze – not necessarily! I only commented to try and show that as matter of law there are ‘Principles of the Treaty’ and they do have meaning (they exist in case law and are now referenced in legislation). While a ‘full and clear explanation’ of them would be difficult to achieve, that does not mean that they only ‘exist in the minds of the politically correct’.

    A full and clear explanation of the law of contract would also be difficult, but that doesn’t mean it only exists in the minds of the ‘business elite’ for example!

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  31. SW (240 comments) says:

    Anyway, I probably can’t answer your question to be honest!

    By ‘iwi-self management’ I imagine (perhaps wrongly) that you are referring to so called ‘rangatiratanga over resources’? If so, I’m also not sure when such a situation might arise. I think any attempt to resolve a conflict without an example would be quite abstract.

    Maybe I could answer by suggesting that there is perhaps no need to think that the principles would conflict. Under the principles it is clear that the Government has the right to govern and make laws (so the law applies as equally to Iwi as any other entity).

    The principle of self-management (or rangatiratanga) has been described as guaranteeing to iwi the control and enjoyment of the resources that it is their wish to retain. From the article I mention above the “Government also recognised the Court of Appeal’s description of active protection, but identified the key concept of this principle as a right for iwi to organise as iwi and, under the law, to control the resources they own”.

    So, at least to me, the principles seem largely complimentary. Iwi have the right to control the resources they own and the Crown has a duty to protect that right. Does that make sense?

    I’m not wanting to diminish that there is huge controversy and disagreement over what resources Iwi do/did own! (not helped by the Maori concept of ownership obviously being far different to the Brittish concept of ownership)

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  32. Black with a Vengeance (1,865 comments) says:

    Nah Manhole…I woulda turned up to work if that was the deal we’d struck. Gotta honour your commitments eh?

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  33. Albert_Ross (293 comments) says:

    SW: Don’t we all have the right to control the resources we own?

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  34. SW (240 comments) says:

    Albert_Ross: Yea that’s right – it isn’t a radical notion is it?

    And if I was to ask you what things you own and on what basis you own them it would be quite straight forward right. Eg you own a car because you paid money for it and now have legal title.

    But when it comes to pre Treaty Maori ownership of resources, on what basis could Maori claim to have ownership of the resources they had control of? One way to deal with that problem is to say that because Maori did not have a British legal system they did not in fact own any of the resources under their control.

    What our Courts and Government have said instead is that that the Treaty recognised ownership rights of Maori towards resources under their control. Where the Crown breached that right (historically, by actions such as confiscating land), remedies can be sought.

    Does that make sense?

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