Unborn child ruled out as a dependant

By MATHEW DEARNALEY

A redundant Telecom worker has failed to have an unborn child counted as a dependant in a bid to boost his severance pay.

The Employment Court ruled that a foetus was not financially dependent on its parents. It ordered Paul Gibberd to pay $1500 towards Telecom's legal costs after rejecting his appeal over an Employment Tribunal decision.

The Engineering, Printing and Manufacturing Union's national secretary, Andrew Little, was disappointed with the decision.

He feared it would affect other workers left in similarly difficult circumstances. The union would pay Mr Gibberd's legal bill.

Mr Gibberd's first child was born three weeks after he was laid off in 1998 as a field technician in Hamilton. It was a job he held for 13 years since joining Telecom's predecessor, the Post Office.

Redundancy compensation stipulated by his collective employment contract included five weeks' pay for his first dependant, and four weeks for each subsequent dependant.

The contract defined a dependant as "a person for whom the employee is financially responsible, either for legal or moral reasons, regardless of sexual orientation".

He appealed after the Employment Tribunal ruled that a child had to be born to be a dependant.

Union lawyer Anne-Marie Hendra cited cases in general and criminal law which deemed a foetus to be a child.

These included the administration of wills and estates in New Zealand law, and workers' compensation in Britain.

She argued that the intent of the Telecom contract was for redundant workers to be compensated using a formula based both on past service and by reference to a continuing responsibility to provide for dependants.

Telecom's lawyer, Penny Swarbrick, argued that an unborn child was not a person for whom an employee was financially responsible. Although an unborn child depended on its mother for life, it was not a financial responsibility.

An unborn child had no need for money, she said, and an acceptance of Mr Gibberd's claim could make companies liable for payments even for early pregnancies.

It may lead to employees having to repay portions of redundancy compensation if an unborn child did not survive a birth.

Judge Graeme Colgan said the issue was what the contracting parties intended to be the interpretation of their contract.

"Questions of fairness, reasonableness or other views about the merits of the parties cases do not come into it," he said in his decision.

Although Telecom paid compensation for the unborn child of another worker, it said this was a mistake.

If the contracting parties had intended unborn children to be counted for redundancy compensation, they would have turned their minds to including a contractual definition of yet-to-be-born dependants, said Judge Colgan.

"That they did not do so tends to indicate their intention that the event of birth would be the determiner of whether a child was a person in terms of the definition of the word 'dependant'."

Mr Little said Telecom's redundancy scheme contemplated extra living costs for people with children, and costs started mounting up well before a child was born.

It is understood that Mr Gibberd has found another job. A second child has arrived since he left Telecom.