An ex-director of a Christchurch stockbroking firm claims the business underpaid him by at least $155,000.
He has taken the company to court to fight for the money, but has hit a roadblock while trying to access documents he believes would prove his case.
The proceeding is the latest in a long-running bitter dispute with the company, with another judge previously describing the man as “highly antagonistic” towards the business, saying he harboured “a deep resentment”.
James Smalley worked at the investment advisory and stockbroking firm Hamilton Hindin Greene (HHG) from 2006 to 2014, spending several of those years as the company’s director.
He has previously gone through lengthy court battles relating to the sale of shares he owned in the business.
Smalley is also starting court proceedings claiming his holiday pay entitlements were incorrectly calculated. He said he was also not paid for sick leave and public holidays, and other pay errors were also made with his salary.
According to a decision from the Employment Court in Christchurch, released last month, the full amount Smalley is seeking is yet to be quantified but adds up to at least $155,000, Judge Kerry Smith said in the decision.
The figure includes at least $120,000 for unpaid and underpaid holiday pay, and at least $35,000 for unpaid or underpaid sick leave, bereavement leave, public holidays and alternative days.
“HHG does not accept that it breached its statutory or contractual obligations to Mr Smalley. It denies owing him any money and resists penalties being imposed,” Judge Smith said.
HHG has said Smalley, as director, knew the details of the pay structures and had therefore agreed to them, and that he was out of time to recover money, as there is a six-year time limit to file a proceeding.
In February last year, Smalley served a notice on HHG requiring disclosure. This is a mandatory process in court where parties must reveal certain information and documents relevant to the case.
Smalley’s notice called for 15 categories of documents to be disclosed.
HHG objected to parts of the notice, saying what was sought was irrelevant and might include privileged or commercially sensitive information, as well as information subject to privacy restrictions.
Smalley has challenged the objection in court, asking Judge Smith to compel HHG to hand over the documents or allow him to inspect them himself to determine if they are relevant.
“As part of this challenge, Mr Smalley does not accept that HHG adequately described the searches it undertook to comply with the notice. He wants a fuller explanation of how the search was performed,” the judge said.
He believed they were not handling disclosure correctly, claiming at times they handed over documents they had previously said did not even exist. He also said the company had given him redacted documents that had previously been provided in an unredacted form.
Smalley invited the court to make a finding that HHG had done a poor job searching for relevant documents, and that it was likely there were still further relevant documents in existence.
“He is concerned about how thorough HHG was given what seems to have been the incremental way they attended to disclosure,” Judge Smith said.
Smalley had “little or no confidence” HHG had done the job correctly.
HHG, meanwhile, expressed concern that releasing the full information Smalley requested would be a breach of their data protection responsibilities.
The company “was concerned that HHG would need to report itself for a breach of privacy and there might be consequences for its NZX position”.
HHG suggested the court could review the unredacted documents, but Judge Smith said he was “reluctant” to do so, saying previous case law established the court “must be in real doubt before doing so”.
“The somewhat generic description of the reasons for the redactions and the occasional use of ‘may’ to indicate that it was possible that the documents were appropriately redacted, is not adequate. Mr Smalley is entitled to know why the documents were redacted and this generic approach does not achieve that outcome,” the judge said.
Judge Smith ordered further disclosure in some areas, saying HHG must provide better explanations for certain redactions and the withholding of some documents. He also ordered more disclosure from the company to determine if it has monthly profit and loss reports in the relevant period.
He sided with HHG in some areas of the objection, accepting in some cases transaction reports were lost or destroyed in the Christchurch earthquake, and in cases of other documents the company had provided an adequate explanation for why they hadn’t been handed over.
It is not yet known when the substantive hearing will be held.
Melissa Nightingale is a Wellington-based reporter who covers crime, justice and news in the capital. She joined the Herald in 2016 and has worked as a journalist for 12 years.