Employment Court Update – another Win.

Opinion piece: Liz Gregory.

(Thoughts, opinions and views expressed here belong to Liz Gregory and may or may not represent the views of all leavers, current members or the Trust).

It’s August 2024 and there has been some more success in the Employment court. After a legal battle to-and-fro, it has been decided all of the remaining employment issues that need ironing out will occur within the Employment Court, and will not be done inside the Employment Relations Authority (ERA). This is a significant decision for reasons that will come clear. Click here to read the judgment. Click here to read a news article.

The Journey so far

Way back in February 2022 some young men who left Gloriavale went to the Employment Court to seek a determination that they were “employees”. This case is known as the Courage (Boys) case. (The backstory is that the Labour Inspectorate had completed two poor investigations over the past several years and wrongly determined that the members were volunteers.)

In May 2022 the boys won the case.

In between times the Girls launched a case (Pilgrim case) seeking the same declaration of employee, and after a bitsy 10 week trial in starting August 2022 and finishing in March 2023, the girls received the judgment in July 2023 that they too were employees.

So why in 2024 is this still in the courts? Well, the road to justice and accountability is slow…

To Appeal or not to Appeal?

Surely it’s smooth sailing from here? They were employees, and they simply need to be paid their lost wages??

Wrong. Everyone has a right to appeal. Gloriavale did not the appeal the (Boys’) Courage case, but they sought leave (permission) to appeal the (Girls’) Pilgrim case. The judge declined Gloriavale’s points of appeal but came up with two points of their own for which they’ve allowed the appeal.

The girls’ lawyers then appealed the decision to allow Gloriavale to appeal and took it all the way to the Supreme Court, but ultimately lost that in July 2024. It doesn’t mean they will win the appeal, but there is an option for Gloriavale to discontinue with the appeal if they don’t want to spend more money on lawyers… or they might want to continue and delay the proceedings further…

So why haven’t the boys been paid at least?

This is far from simple. There are multiple questions to be answered, but because Gloriavale does not accept the ruling or responsibility, it creates a need for multiple court hearings to resolve the issues…

First question. Who was the employer???

Second question: How do you work out what people are owed and what jurisdiction should work out how much needs paying?

Third question: Isn’t there a 6-year time bar on employment related issues except in exceptional circumstances? Does that apply here?

So has the judge worked those things out yet?

Yes and no! Believe it or not she only heard the arguments on that issue in July 2024. She gave the answer to #2 yesterday.

Question #1: Who is the Employer for the Boys?

It’s important to identify who is the employer, because it’s them who will ultimately owe the money to the employees.

Is it the overall leader at various times – Hopeful Christian or Howard Temple? Is it their role as Overseeing Shepherd that is liable? Or is the Christian Church Community Charitable Trust liable (they owned lots of the businesses that the forced labour teams worked for)? Or is it the business directors (who were basically puppets of the Servants & Shepherds leadership team).

The judge found in December 2023 that the Girls’ employer was the role of the Overseeing Shepherd, and pretty much everything he controls.

And in July 2024, all parties agreed in court that the Boys employer should also be the Overseeing Shepherd. (I guess Gloriavale hopes it will be the Overseeing Shepherd who can easily be bankrupted, since they don’t believe in individual ownership. The leavers’ legal team will be hoping it’s the role of the Overseeing Shepherd – past, present and future – who ultimately controls every financial asset at Gloriavale.)

Hopefully the judge will rule on this in the next week or two.

Question #2 – How do you work out what people are owed and who works this out?

It’s not that hard … surely…?

We’ll actually it is difficult because there are more processes to follow. Firstly it’s common to try mediation between the two parties to see if they can come to an agreement without the need to use more legal processes.

They tried mediation in 2023 and it failed. That will not be repeated.

Next step was to file the claims with the Employment Relations Authority (ERA). Their job is to settle employment related disputes. The plaintiffs filed with the ERA in January 2024, however the plaintiffs then also immediately asked for it to be removed back to the Employment Court to complete the process. Click here for more details. They said it was a complex case and it would speed up the process for the same judge to work it out based on the evidence accepted in court. They evidence clearly isn’t able to be found without great difficulty, because there was no or poor or untrue record-keeping.

But this attempt failed, with the ERA saying they were the best placed agency to deal with it. Click here for more details. The ERA commented,

“In his decision, ERA member David Beck said the authority had dealt with similar matters where there were no records kept, and that there was no urgency in this case because it had taken a long time to get to this point.”

However, the leavers legal team disagreed and argued in court in July 2024 for special leave (permission) to remove it back to the Employment Court. Keep reading for the result of this application.

Question #3 – Is there a 6-year limitation on wage arrears?

This is an interesting point of law. Usually you have 6 years to lodge a claim for wage arrears – unless there are exceptional circumstances. Gloriavale indicated in court that it would be relying on the 6-year time bar. (They do not want to have to back-pay people for more than 25 years of work). The plaintiffs have made it plain they seek for this bar to be removed. It was clear this issue would be sent back to the Employment Court to be heard.

Appeal of Decision Successful

On 7th August 2024, Judge Inglis ruled that the Employment Court is the most appropriate place to have ALL the remaining decisions made. She will decide on the 6 year time bar. She will also decide who is liable. And she will decide how much the plaintiffs receive. Click here to read the judgment.

It is anticipated that Gloriavale will appeal parts of the decisions, and so expect to see it travel up the appeal courts and right to the Supreme Court sometime soon.

Summary – What are leavers still waiting on?

Arguments heard and judgments still outstanding:

#1: Who is the Boys’ Employer?

#2: How much should the leavers’ lawyers be paid for their costs for winning the cases?

Arguments still waiting to be heard in court:

#1: Is there going to be a 6-year time bar?

#2: How much will Gloriavale have to pay the plaintiffs?

#3: How will the court deal with all the other leavers who aren’t plaintiffs and want to take advantage of the ruling?

#4: What was the Government’s role in enabling labour exploitation? That whole half of the case hasn’t even started yet…

When will there be resolution?

When will Gloriavale and the Government recognise it was wrong, apologise and makes appropriate compensation?

How long is a piece of string?

It’s easy to see how these cases will drag into 2025. But Gloriavale has options. But they don’t seem to like the options.