Ugone brought today’s proceedings against Star Moving as the first defendant and Biggs as the second defendant to enforce the Employment Relations Authority’s compliance order.
Judge Smith made no further order against the company at this stage, and fined only Biggs, with half the $20,000 going to Ugone in recognition of the time and effort he had put into seeking a resolution.
“He is entitled to $10,000,” Judge Smith said.
Ugone was employed by Star Moving at its Wellington depot from 2017 until he was summarily dismissed in August 2020, due to medical incapacity after he suffered a knee injury at work two months earlier.
He took his case to the ERA, which in February 2023 determined that he had been unjustifiably dismissed and ordered Star Moving to pay $58,739 in compensation and penalties.
It was followed a month later by an order that Star Moving pay $5250 in costs.
The company initially failed to comply with either of the determinations, which prompted Ugone to seek a compliance order against Star Moving and Biggs. It was granted in May last year, at which time the authority awarded further costs.
Star Moving and Biggs initially failed to comply with the order, until the eve of liquidation proceedings last year in the High Court.
Biggs then paid in full, followed by payment of the costs order.
Ugone’s lawyer Joshua Pietras said that meant the debt owed to Ugone by Star Moving had been satisfied, but a penalty was warranted.
Pietras said the level of culpability was significant and that Biggs’ behaviour was “not just a case of passive non-payment”, but deliberately obstructive, and featured a degree of retaliation.
He cited as examples Biggs’ trespass warning to the person who served him legal papers, and then Pietras himself being the subject of a complaint by Biggs to the law society.
Pietras said Biggs and his companies had a “long and potted history” of breaching orders of the ERA and the court.
He said “numerous awards” had been made against Biggs and his companies for breaching employment standards, and a plaintiff in another case, former employee Murray Cousens, had still not been paid a “substantial amount” owed.
In 2022 the Employment Court gave Star Holdings one month to comply with an order made by the ERA to pay Cousens $25,000 compensation, $6131.12 in lost wages, a penalty award of $2000 and $3000 in costs.
Subsequently, the court also sanctioned the company by way of a $10,000 fine, of which $6000 was payable to Cousens.
He was also awarded a further $3000 in costs and given leave to apply for further sanctions, such as the ability to seek sequestration of the company’s property, if it continued to defy the order, meaning Cousens was due more than $45,000.
Pietras said it appeared to be part of Biggs’ modus operandi that he delayed as long as possible, leaving those who challenged him little choice but to give up.
“It my submission that Biggs and his various entities have utter disrespect for the court and won’t comply until enforced.”
Reference to Biggs’ previous breaches prompted a warning by defence lawyer Ashley Oh, who said the court needed to be cautious to guard against a “double jeopardy” situation by weighing in on past transgressions.
Judge Smith said there was a risk of that in this case but it could be avoided by the way the fine was structured.
“There is such a risk if both Mr Biggs and Star Moving are fined because the circumstances which exposed them to a sanction are essentially the same.”
Judge Smith said the decisions of Cousens and another referred to in court showed a theme that Biggs, and the companies he controlled, did not comply with orders made against them unless under compulsion.
“That theme must influence the amount of uplift in the fine.”
Judge Smith took into account Oh’s submission that the orders concerning Ugone had been satisfied, albeit belatedly.
He did not accept that Biggs’ failures to comply could be described as inaction or as being passive or in some way benign.
“In the face of unsatisfied orders to pay and further orders to take action, there is no meaningful difference between inactivity and disobedience,” he said.
Biggs was given 21 days to pay the fine and ordered to pay costs of $13,981.
Tracy Neal is a Nelson-based Open Justice reporter at NZME. She was previously RNZ’s regional reporter in Nelson-Marlborough and has covered general news, including court and local government for the Nelson Mail.
