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The Dominion
August 23 1996
Creche award based on note, court told
Chief Employment Court judge Tom Goddard
had decided Christchurch Civic Creche staff were unjustifiably dismissed
because their employer did not give them the backing they were entitled to,
lawyer Hans van Schreven said yesterday.
He was arguing in the Court of Appeal against a Christchurch City Council
claim that the Employment Court award of $863,763 to the 13 staff was too
high.
The five-judge court reserved its decision last night.
Judge Goddard's finding that the dismissals were not genuine redundance was
based on city manager John Gray's note of September 3, 1992, Mr van Schreven
said.
The note had told staff they were redundant but there had not been the
consultation required in their employment contract and it also said the
creche had been losing money since the arrest of Peter Ellis, who was later
convicted of abusing creche children.
Mr Gray had amended the note next day but the staff had already suffered hurt
and humiliation.
Mr van Schreven said the council should have talked to staff to explore
alternatives before notes were handed to them and news media. The Education
Ministry had announced it was suspending the creche's licence but an approach
from the council, union and staff might have changed its view.
The staff employment contract also indemnified staff against legal action
arising out of their employment. That entitled staff wrongly charged with
child abuse to have their legal costs paid.
The council's lawyer, Julian Miles, QC, said redundancy agreements had to
have flexibility because when and how redundancy arose could not be
anticipated.
Once the ministry decided to close the creche the council and union could not
do anything that would have made the slightest difference to that decision.
The shock and humiliation staff suffered was not because they were made
redundant but because the ministry closed the creche without notice.
Indemnity clauses were designed to protect staff against legal action arising
out of their employment not from criminal charges for alleged acts against
their employer's interests, Mr Miles said.
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