News
Making employees pay for their sins
First published in the Independent, 20 February 2008.
One of the hallmarks of 1980s English tabloid reporting was the "Gotcha" revelation.
The premise was simple: get a celebrity (or member of the royal family) on the record representing their position about something personal and then snap a photograph depicting them doing precisely the opposite.
The concept was, of course, to sell newspapers. The practice spread fast and the law does not escape its grasp.
While not frequent, it is not unheard of for an employer to seek to obtain dramatic photographic evidence of an employee's hypocrisy in an effort to defeat a claim against him or her.
But, having done so, what should the consequences be?
An illustration is provided by the decision of the United States Court of Appeals in Weisberg v Riverside Township Board of Education.
Weisberg had been an employee of the School Board since 1972. In June 1998 a wooden speaker fell on his head while he was at work.
He claimed that this workplace injury caused him difficulty in focusing, gave him headaches, and made him sensitive to loud noises.
He required his employer to provide certain accommodations for him, including limiting tasks which involved writing; allowing him extra time and resources to complete his work; restricting his working day to eight hours; and providing a quiet, distraction-free working environment.
He also claimed that he was suffering extreme fatigue because of his injury, that his working week had to be limited and that he could not chaperone any extra-curricula school events such as school dances or basketball games.
The employer refused to indulge Weisberg in the ways sought, so Weisberg raised a claim against his employer.
And that is where things got interesting.
When he was providing his evidence, Weisberg was asked a question about what he had done the previous Monday night. He responded that he had watched a football game at home alone - there was no way that he could have attended the game in person because of his fatigue. He said that if he had done so, he would be so tired the next day he would have required a day off work.
Of course, the employer had photographic evidence of Weisberg's activities that evening. It showed that he had met a group of friends, attended the football game, enjoyed some hospitality prior to the event, and returned home after the game at approximately 2.00am. He had attended work the next day without event.
Gotcha.
As one might expect, Weisberg's claim failed. But, largely because of the manner of its success, the employer sought more.
It argued that, because of the nature of Weisberg's dishonesty, fairness demanded that he should pay all of the legal costs that his employer had been forced to incur in defending his claim. Put another way, Weisberg had wasted the school's time by maintaining a baseless and vexatious action.
Awarding costs against an employee is not unheard of in New Zealand - although it is unusual. It is a step which is, in effect, a way of penalising an employee. Generally, tribunals in New Zealand are hesitant to punish employees unless their conduct is so horrendous that it requires some sort of condemnation.
In recent years, the Court of Appeal has encouraged employers to make "Calderbank" offers, whereby the employer is encouraged to be honest in its assessment of prospects of defending an employee's claim. Where the employer provides a reasonable offer of settlement - which is not exceeded after the hearing - the theory is that the employer should be able to obtain a contribution to its costs.
But even with this encouragement, the Employment Relations Authority and Employment Court have been slow to act.
But what about Weisberg's case. What would happen here in New Zealand?
The "Gotcha" evidence obtained by the employer effectively established that Weisberg was a fraudster. It is difficult, in that context, to think of any sort of activity more worthy of condemnation.
It would have been open to the Employment Relations Authority, or the Employment Court, to award costs against Weisberg and there might have been a hesitation to do so.
For reasons which are probably related to the perceived imbalance of power between employer and employee (especially in terms of financial wellbeing) there is a general reluctance to award costs against an employee. That is what happened in Weisberg's case.
Even though Weisberg's evidence did not support even a minimal case of discrimination in the workplace, and he had almost surely committed perjury in bringing his claim, the Court of Appeals could not bring itself to impose some sort of penalty on him.
Fair or foul?
