Gloriavale given permission to seek Appeal in Girls’ Employment Court judgment

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).

Today Gloriavale was granted permission to appeal the Pilgrim ruling that found the Girls were employees and entitled to minimum entitlements. Their lawyers and leaders and some members will no doubt be jumping for joy, whilst leavers will just take a deep breath and allow the process of justice to play out. We have a robust court system for this exact reason – to give a fair opportunity for a judgment to be challenged. An appeal simply gives an opportunity to assure everyone that the judge applied the law and followed proper process.

Gloriavale has probably 20 million reasons to appeal this judgment.

I have it on good authority that at the time of the employment court ruling, the leaders publicly announced at Gloriavale that they would be appealing, saying something like “…we will be seeking to lodge an appeal for the simple fact that if we don’t it goes into the record that we agree with that finding, and we do not agree with that finding so that’s why we will lodge an appeal….”

In other words. We don’t agree. We don’t expect to win. But we don’t agree. And so we will spend ten of thousands (or more?) on an appeal just to show we’re not happy with the ruling. Mmm!! I guess it’s easy when it’s not your money you’re spending.

But being given permission to seek an appeal, and winning an appeal are two totally different things!

However, to be honest, the thought of an appeal is not really appealing because it’s such a long, slow haul through the courts for some kind of accountability. The judges said there was an “evidential fountain” in favour of the plaintiffs. And yet on a couple of finer points of law they are willing to allow a panel of three appeal judges to comb through the judgment to see if it erred in anyway, shape or form. Gloriavale will need to decide whether they wish to proceed with the Appeal, and make the application. An Appeal is not a re-trial. It will be dealt with on paper with the evidence already submitted.

I’m not sure who wins with this delay.

The Gloriavale leaders aren’t winning because anytime the Gloriavale issue hits the news it only looks worse for them.

The leavers aren’t winning, because it delays their final entitlements (rightful payment for their slavish work).

The leavers’ lawyers aren’t winning because they won’t be get paid anything until this sorry saga is completed.

The current members of Gloriavale aren’t winning, because many are happy with the small changes that have been forced on them by the judgment and they actually don’t want to be sent back to their old way of doing things.

Some current members aren’t happy because there is no clarity about their future viability as an organisation while the possibility of an appeal hangs in the balance.

Some current members aren’t happy because the money they create from their work in the community is being gobbled up by lawyers and the common member doesn’t get to make those decisions. (They don’t live in a democracy!)

But I am sure some current members are delighted and are prematurely jumping for joy with this opportunity to have this ruling appealed. Maybe they can just get back to their life as normal once all this hub-bub is over??

We’ll have to wait and see.

What were Gloriavale’s complaints about the judgment?

In August 2023 Gloriavale listed at least 15 reasons why the judgment was wrong and sought leave to Appeal. Read article here.

These include: possible Misdirection of Employment Court on the requirements of Section 6; lack of Contract of Service; wrong conclusion by the Employment Court that amounts to an error of law; an error of law by not identifying the employer; a breach natural justice rights by: a) The judge failing to recuse herself (step down) after judging the Boys’ case, b) Appointing Counsel to assist the court (Mr Kirkness) when the plaintiffs had adequate representation, c) Admitting evidence that was prejudicial and irrelevant, d) Appointment of Dr Norris as a court expert part way through the case, without interviewing any plaintiffs or having access to the evidence. They also noted that that the judgement is likely to impact the rights and interests of other community members; the Labour Inspectorate investigated twice and found they were not employees, since the judgement; the Govt has indicated it intends to take action against the community and this will have ramifications for the way of life of its members; it will impact other communal groups in NZ; it’s contrary to how other country’s courts have viewed similar communal groups; the issue should have been heard by the Employment Relations Authority first.

So pretty much anything and everything they could think of in the hopes something might stick – no matter how small.

Gloriavale Appeal bid largely falls over – but 2 points remain

8 December 2023 –  The Court of Appeal dismissed the majority of Gloriavale’s concerns . They said the Employment Court did not misdirect itself or misapply the test in s 6, or err by making an order under s 6(5) declaring that the plaintiffs were employees, without determining the identity of the plaintiffs’ employer, or err by conducting the trial in a manner that breached natural justice.

However the judges did leave open a possibility for an appeal to be heard on two finer points of law. They wrote, “ However, we are disposed to think there are narrower questions of law which may have wider significance for religious or volunteer organisations, and which are capable of decision on the existing record without embarking on the wider inquiry sought by the applicants.”

They are:

(a) whether the respondents in this case worked for hire or reward; and

(b) if not, whether they were volunteers for purposes of s 6(1)(c).

“The first of these questions involves consideration of intangible benefits such as religious support and guidance, spiritual salvation and the entitlement to remain so long as the person works. The second concerns the impact in law of the evidence that the respondents’ agency was compromised in their circumstances at Gloriavale.”

Final Comments

The finer points of law that will be examined relate to the way in which this ruling might create a precedent for other religious volunteer groups. Here is my point, if your religious organisation is curtailing freedoms, abusing people, exploiting people, coercively controlling people, and stealing their whole personhood and independence (as was accepted in the evidence), then this ruling SHOULD be used as a precedent! 100%. May this be a warning to all religious culty groups in New Zealand.

If your group is not involved in these kinds of behaviours in the way that was put on display for the 10 weeks of the trial, then relax, you won’t have anything to be worried about. These facts were very specifically related to Gloriavale and Gloriavale-esque behaviours..

Potential Larger Scandal

It is important to note that if the young ladies were not employees, then they were slaves.

If the law was not providing a remedy for slaves, then this would be a way BIGGER scandal for the Government.

We watch on, and wait, and wait, and wait…