The Department for Courts has been told it will have to pay substantial compensation for unlawfully terminating the employment of a High Court judge's associate who is racked by occupational overuse syndrome (OOS).
Lynda Tipene was for many years the associate or secretary to the recently retired Justice David Morris, who
supported her claim before the Employment Court this month.
Ms Tipene, whose duties included typing oral evidence as it was given in court, developed OOS, which made her unable to work for long periods.
In 1997 the department started talks with Ms Tipene about medical retirement, but Justice Morris was "affronted".
He summoned the manager of the High Court at Auckland, Marion Neller, to his office, telling her he was the one who decided whether Ms Tipene was "fired or not".
In his judgment, the Chief Employment Court Judge, Tom Goddard, said it must have been an "awe-inspiring" experience for the court manager, as Ms Tipene was left alone for the next five years.
A year ago the department again raised the issue of medical retirement.
When terms could not be agreed, the department gave Ms Tipene 20 days' notice.
John Katz, QC, representing Ms Tipene, told the court that under her contract, only Justice Morris could dismiss her.
He argued that the case also involved the doctrine of the separation of powers.
Mr Katz characterised the department's action as that of a civil servant as an agent of the executive branch of Government telling a High Court judge what to do and, in the absence of compliance by the judge, taking unilateral action to thwart the judge.
Crown lawyers argued that the Crown was the employer of judges' associates and the department acted on its behalf.
They said the contract did not - and could not - give the judge an exclusive right to appoint or terminate an associate's employment.
But Judge Goddard said contracts must be taken to mean what they say, and the wording could not be clearer.
"The contract expressly provides that a judge appoints the associate and the judge terminates the associate's appointment ...
"There is no exception for those cases in which the department might perceive that termination action ought to be taken, but the judge is unwilling to take it."
Judge Goddard said Ms Tipene was entitled to substantial compensation and ordered her reinstatement.
The amount of compensation is to be decided by mediation.
