Rugby professionals in employment spat with franchise owners

A stoush between two senior rugby franchise staff and its chief executive has ended up in the Employment Relations Authority; with their main grievances yet to be heard. Photo / Getty Images

A two-year long employment dispute involving two rugby professionals who say they weren't paid by their franchise has ended up in court.

But it hasn't even reached the dispute stage yet as they've just settled a battle over who can represent them, and whether their complaint was formal enough and within the appropriate timeframe.

The complainants, A and B, both have name suppression. They claim they were unfairly dismissed after asking questions about not being paid, while the franchise alleged the pair colluded with another former employee in attempting to set up a new franchise behind their back.

Both professionals were employed by 'C' in their leadership team for an offshore rugby franchise from July 2020 until it came to an abrupt halt several months later.

Complainant A signed a contract with the franchise in August 2020 that included a sign-on payment of $38,000. The second complainant, B, had already joined the franchise a month earlier in a different role.

On September 5, 2020 the franchise's chief executive emailed several people connected to the club, including A and B, saying they would not be competing in a competition.

A month later, A and B were advised by email from the chief executive that the franchise did not have sufficient funds to make its payroll payments.

"In spite of this however [the CEO] stated that [they] would find a solution to compensate the applicants as [they] had given them [their] word," an Employment Relations Authority decision stated.

In the early hours of 4 October 2020, A was copied into an email from the chief executive which was sent to a now former director saying he had been "summarily dismissed for serious misconduct for carrying on business on behalf of [company] without the consent of its CEO or the board of directors".

The ERA's decision stated it appeared the former employee may have tried to take over the rugby franchise.

A's name was mentioned in the CEO's email, taking him by surprise as he was unaware of any concerns about his actions or behaviour.

However, several hours later the CEO emailed retracting their comments.

By late October 2020 neither A or B were yet to receive any payments from the franchise.

They then contacted Warren Alcock - who has represented more than 80 All Blacks including Richie McCaw and Dan Carter - who got in touch with the franchise to ask when payments would be made.

However, the CEO took umbridge to Alcock's involvement, questioning his capacity to represent the pair. He responded, "I am an accredited agent and a barrister and solicitor of the high court.

"I'd like to think the answer to the question about when [A] and [B] were to be
paid would be the same irrespective of the capacity in which I represent them."

Alcock then emailed the CEO on October 29, 2020 raising a personal grievance on behalf of the pair for failing to pay owed monies and a further sign-on payment for A.

On November 2, Alcock received letters from the CEO stating the employment of A and B had been "terminated for serious misconduct".

"The letters alleged that they had colluded with a former employee to form a new entity under new leadership without the knowledge or approval of the CEO or the board," the decision stated.

"It was further alleged that 'critical information' had been withheld by the [former employee] concerning his involvement with A and B's previous employer which had resulted in their endorsement for their respective positions."

The letter further stated that due to their actions, they would not be compensated.

"It is our position that the losses we have accumulated as a direct result of your
misconduct and that of your former professional peers far outweighs any real
or perceived compensation due."

The CEO also made reference to two emails supposedly earlier sent to the pair confirming their suspension, however neither A or B had received any emails.

Alcock requested copies of the emails, but the CEO replied they were under "no obligation to continue dialogue."

A copy of the emails were never provided.

A grievance was filed with the Employment Relations Authority in February last year, to which the franchise stated Alcock had failed to provide a "formal letter" outlining details of the alleged complaints, instead only sending a one-sentence email.

Authority member Peter Fuiava said that it was "for good reason" that the Employment Relations Act did not require an employee to file a "formal letter" for an alleged personal grievance.

"Requiring a grievance to be put in a formal letter would make the grievance process unduly technical and rigid when the process is intended to be informal and accessible.

"The Authority finds that it is somewhat disingenuous of [the employer] to require a formal personal grievance letter from the applicants when its termination of employment letters to A and B clearly acknowledge Mr Alcock having raised a personal grievance on their behalf."

Fuiava ruled there was no basis to exclude a Alcock from acting as a representative.

"I find no good reason ... to exclude Mr Alcock as the applicants' representative especially when they wish him to act for them in this capacity together with Mr [Gerrard] Brimble."

The ruling now paves the way for the dispute to move forward.