An anti-workplace bullying advocate and his company have been ordered to pay $18,000 for making disparaging remarks about a former employer when he agreed not to.
But Allan Halse of CultureSafe NZ said he would challenge the decision and seek a judicial review in the Employment Court.
Halse and CultureSafe NZ were this month fined in the Employment Relations Authority after Hamilton City Council complained he had breached a 2014 confidentiality settlement.
ERA member Michele Ryan said in a recently released decision that Halse had form for the type of breaches claimed by the council.
He had twice previously been before the Authority for breaching terms of settlement involving issues of confidentiality and non-disparagement in unrelated cases.
"Both cases expressed concerns as to Mr Halse's unrepentant flouting of the law...," Ryan wrote in the determination dated February 9.
"Mr Halse's approach to his legal obligations in this case has not altered."
The city council complained that Halse made 13 posts on the CultureSafe NZ Facebook page in December 2020 and January last year that breached a settlement where the council paid Halse a "considerable sum of money" after he challenged his dismissal in early 2014.
The settlement terms stated that Halse could not make disparaging remarks about the council or chief executive and that the settlement itself was confidential.
A post on December 12 was highly critical of the council and its chief executive prompting the council to ask Halse to take it down.
Instead, another post appeared on December 21 in a similar tone, the determination said, including the council's letter detailing the non-disparagement provision.
Two days later the council notified the Authority, asking that the posts be removed and that Halse and CultureSafe NZ face penalties.
Eleven more posts appeared on the page the following month, including one containing an email from Halse to the council outlining a client's "suicidal ideation".
Halse told Open Justice he was never given a hearing and his arguments against the council were taken from an affidavit.
In that he said the settlement agreement was not a contract of employment between him and the council and that there was no employment agreement between CultureSafe NZ and the council, therefore the Authority had no jurisdiction over the issue.
However, Ryan said the Authority's jurisdiction was not confined to those two matters alone and that there was an express provision in the Employment Relations Act for it to order compliance with an agreed settlement.
Halse argued because CultureSafe NZ did not exist at the time of the settlement it could not be held liable.
But Ryan said settlement terms captured "any person" who was aware of them and "any person" extended to a company.
She referred to an earlier case involving CultureSafe NZ concerning non-disparagement and confidentiality clauses in settlement agreements where Judge Joanna Holden in the Employment Court said a person who knew of a settlement's terms and breached them could be liable.
Halse submitted that as long as the posts did not relate to any matter arising from his earlier employment problem with the council, he was free to make comments on the operation of the council as a public body and that right was protected by the New Zealand Bill of Rights Act.
"Mr Halse is mistaken on this point," Ryan wrote.
She said there was nothing in the settlement that limited disparaging comments to the dispute at the time of Halse's dismissal.
Ryan also said there was no basis to find the settlement was unenforceable under the Bill of Rights Act.
She said Halse seemed to be relying on the defence of iniquity - immoral or grossly unfair behaviour by the council - and that his settlement provisions "suppress evidence of wrongdoing".
However she said previous cases showed while the Court would not stop disclosure of confidential information if it revealed illegal acts or misconduct in the public interest, there was an important distinction between what may be interesting to a curious public and matters that affect the public.
She said Halse claimed the council was provoking the suicide of his client and failed to investigate and prevent bullying in the workplace.
But Ryan said Halse provided no evidence of the allegations, which he could also have raised with WorkSafe New Zealand but didn't.
Halse argued the settlement was unenforceable because it was out of time but Ryan said the complaint from the council did not arise at the time of the settlement, but when the posts were made, which was inside the statutory timeframe.
Halse said the existence and content of the settlement were unlawful but Ryan said he was out of time to make that complaint and there was no evidence Halse took issue with the settlement before the alleged breaches.
Ryan said this was not an inadvertent breach, rather she believed the posts were published with the intention to discredit the council and cause it reputational harm.
"Those actions cannot be regarded as insignificant or inconsequential."
Halse said he had a moral and ethical obligation to call out bullying behaviour and did so, Ryan wrote, but she said the CultureSafe NZ Facebook page was not a forum Halse could use to justify the breaches.
"The posts were a mechanism by the company to reinforce its brand, and, presumably, to tout for business."
She said given Halse's history of similar breaches and his conduct in this case, a substantial penalty was warranted.
Ryan ordered Halse to comply with the settlement immediately and ordered him and CultureSafe NZ to each pay $9000 to the Crown within two weeks of the determination date.
Halse told Open Justice he would not pay a cent of the fine.