Legal lowdown newsletter#33

ISSUE

33 April 2016

COMMUNITY LEGAL SERVICES SOUTH TRUST

LEGAL LOWDOWN

HE KURA TANGIHIA

This month, the legal profession bid farewell to an esteemed Māori legal academic, Matiu Dickson who sadly passed away in Hamilton.

Matiu, of Ngai Te Rangi descent, was a Senior Lecturer and Associate Dean Maori at Te Piringa Faculty of Law at the University of Waikato.

Matiu was also actively involved with Te Hunga Roia Māori o Aotearoa (The Māori Law Society) and was responsible for composing many songs, including the Māori Law Society waiata.

Matiu also practiced as a Barrister and Solicitor and Barrister Sole. Prior to this he worked as a Councillor at Tauranga District Council.

Kei te kōtuku rerengatahi, haere ra koe ki ō mātua tīpuna, ki reira koe okioki ai. Waiho mātou kia tangi noa I muri nei. Whoatu e hika!

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CLSST IN THE MEDIA TV3’s Story

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BRIEFCASE Employment Law

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MĀORI LEGAL ISUES Tūpāpaku Laws

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OUR STATS Casework Statistics

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IN THE MEDIA Our lawyer, Soane Foliaki, recently appeared on TV3 current affairs show “Story” regarding one of our clients, Una Tanginoa, a quadriplegic man who requires 24 hour care.

Mr Tanginoa is wheelchair bound and uses a modified van to get around. This van, with modifications, was paid for through a lottery grant (valued at $30,000). Mr Tanginoa says that his wheelchair and his modified van have become his legs.

In 2015, bailiffs seized his modified van due to debt owed by Mr Tanginoa’s family. The seizure was a result of a Tenancy Tribunal order for Mr Tanginoa’s family to pay $5,117 for unpaid rent.

Mr Tanginoa accepted the family owed the landlord money, but says the payments should have been coming out of his benefit. However this was not the case.

In April 2015 Mr Tanginoa’s landlord instructed bailiffs to enforce the judgement. The bailiffs went to the property to seize his modified vehicle.

Mr Tanginoa relied on the modified vehicle for transport to doctors visits, medical appointments and the like. As a pensioner on an invalid’s benefit Mr Tanginoa could not afford to pay for a taxi to attend such appointments.

As a result, he developed an infection in his foot which quickly spread. He was rushed to hospital and admitted to ICU for the night. He also faced the prospect of having part of his foot amputated.

On behalf of Mr Tanginoa, our lawyer, Soane Foliaki spoke to the Department of Corrections and was told the seizure was reasonable. Mr Foliaki then challenged the decision in Court on the basis that seizure was unfair and unlawful. The Court ordered the return of Mr Tanginoa’s modified vehicle and ordered the Ministry to pay the $900 cost to have the vehicle released form Turners Auctions where the vehicle was being kept for sale.

This case has since prompted Justice Minister Amy Adams to request a report on whether a law change should be considered.

Although the story reported that the bailiff’s actions were unfair but not unlawful, our position is that the bailiff’s actions were unlawful. With particular reference to possible breaches of the UN convenant on the rights of persons with disabilities.

To watch the full story please visit the TV3 on demand website: http://www.newshub.co.nz/tvshows/story/ quadriplegics-modified-van-seized-by-bailiffs2016041220#ixzz45euzXVSI Reporter: Mike Wesley-Smith

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BRIEFCASE Richards v Fresh Flower Wholesaler Ltd 02 March 2016 [2016] NZERA Auckland 66 We have a look into our casework briefcase to show our readers some of our client success stories. This month we bring you the case of Mrs Frances Richards who was unjustifiably dismissed from her employment.

We represented Mrs Richards through the Employment Relations Authority and provide a summary of her case, below.

Photo Credit: UNSPLASH

We represented Mrs Richards in relation to her employment dispute against Fresh Flower Wholesaler (“Fresh Flower”).

Employment Relations Authority The Employment Relations Authority found that: 

Mrs Richards had been constructively dismissed when she was told her resignation had been accepted even though Mrs Richards had not tendered her resignation. In this sense the Authority held that Fresh Flower “fundamentally breached its implied duty of trust and confidence to Ms Richards”.

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Fresh Flower breached the Record of Settlement for the previously mediated grievances. This did not help in creating a positive working relationship.

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Fresh Flower had breached its good faith obligations to Mrs Richards by failing to provide her with adequate information about her ongoing employment (including her employment agreement and working roster) prior to her recommencing her employment.

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Fresh Flower had breached its good faith obligations to Mrs Richards by unilaterally providing Mrs Richards with two written warnings less than 24 hours after recommencing employment.

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Mrs Richards made adequate steps to mitigate her losses by seeking alternative employment.

Background In March 2015 Mrs Richards was unjustifiably dismissed. Both parties attended mediation and as a result a Record of Settlement was entered into and Mrs Richards was reinstated.

There were problems from the outset and Mrs Richards claimed that Fresh Flower breached the Record of Settlement and made it very difficult for her to reintegrate back into the working environment. This included a failure to provide clear instruction and direction and requiring Mrs Richards to undertake menial jobs such as cleaning up decaying vegetation and scrubbing out the chiller, despite being employed as a Shop Manager.

Mrs Richards also received two written warnings on her second day after reinstatement which purported that Mrs Richards was performing poorly. Mrs Richards also claims that she was physically pushed by a Manager of Fresh Flower and was told “you may as well just clock out and go home” and “we can’t afford to keep you.”

On 17 June 2015, only four days after reinstatement , Mrs Richards was told by Fresh Flower Managers that her resignation had been accepted. This was despite the fact that she did not resign.

NB: The full case can be accessed via the Ministry of Business, Innovation and Employment website: http:// employment.govt.nz/workplace/determinations/ PDF/2016/2016_NZERA_Auckland_66.pdf

As a result Mrs Richards was awarded  $5,000 for distress;  Six months worth of lost wages; and  $380.50 for costs (by costs application at another hearing).

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MAORI LEGAL INTERESTS A REVIEW OF LAWS AROUND TŪPĀPAKU An inquiry has been launched by the Māori affairs select committee which will look at how families are treated with regard to tūpāpaku.

Such a review has been announced amidst concerns raised

by Māori families around the length of time they are required to wait before they can access the bodies of deceased family members. Specific concerns have been raised over access to whanau members immediately after death in hospitals, including SIDS born and still born children.

Whānau have also raised concerns around access to tupapaku when whanau members die overseas and the processes around having those bodies returned to New Zealand.

The purpose of this inquiry is to consider any legislative and/or regulatory changes to ensure best practice for whānau to access and make decisions over the

tūpāpaku of whānau members immediately after death.

The inquiry will review the current powers and practices of relevant agencies in permitting whānau to view of access tūpāpaku. These agencies include pathologists, coroners, police and funeral directors.

At the heart of the inquiry will be cultural guidelines, tikanga Māori and legal requirements around preserving and managing tūpāpaku, funeral, burial and cremation practices after death until burial.

With respect to tikanga Māori the inquiry may also give consideration to traditional forms of tūpāpaku treatment in lieu of embalming and the practices around the return of body parts and organs to whānau.

Submissions close on 29 June 2016. You can make a submission via the New Zealand Parliament website.

REO IRIRANGI MĀORI We are excited to announce our new weekly radio programme on Radio Waatea from 11am every Tuesday. The programme is hosted by our CLSST Board Member, Rangi McLean as part of the Te Hāpai Hauora Hour.

We are pleased to be able to extend our reach into Maori communities via a national Māori radio station and thank Radio Waatea and Hāpai Te Hauora Tāpui for this partnership.

You can tune in to Radio Waatea on 603 FM Manukau or online via www.irirangi.net

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BOOKSBOOKFOR PRISONS APPEAL: May 2016 Help us increase literacy and numeracy levels of prisoners.

Please, donate a book.

Drop-Off Centres WEST AUCKLAND

SOUTH AUCKLAND

Hapai Te Hauora 6-8 Pioneer Ave, HENDERSON

Community Legal Services South Trust 120 Bairds Road, OTARA & Manurewa Marae 81 Finlayson Avenue, MANUREWA

Proudly supported by

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Manukau

Otara

Salvation Army 16B Bakerfield Place Manukau

CLSST Office 120 Bairds Road Otara Appointments available: Monday – Friday

Appointments available: Monday-Friday

Papakura Papakura Citizens Advice Bureau 4a Opaheke Road Papakura Appointments available: Thursday

Pukekohe Heartland Services 6A Roulston Street Pukekohe Appointments available: Fortnightly on Tuesday

Manurewa Manurewa Marae 81 Finlayson Ave Manurewa Appointments available: Wednesday

Maori Land Clinic Manurewa Marae 81 Finlayson Ave Manurewa Appointments available: First Wednesday of every month

SAMOAN LANGUAGE WEEK 29 MAY—4 JUNE 2016 “E felelei manu, ae ma’au i o latou ofaga Birds migrate to environments where they survive and thrive.”

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OUR CASEWORK March 2016

THE NUMBER OF PARTICIPANTS IN OUR LEGAL EDUCATION SERVICES THIS MONTH

LEGAL ASSISTANCE = 55% LEGAL ADVICE = 38% LEGAL REPRESENTATION = 7%

13% THE

PERCENT-

AGE OF MĀORI CLIENTS

WHO

USED OUR SERVICES MONTH

ADMINISTRATIVE LAW = 35%

THIS

CIVIL LAW = 31% CRIMINAL LAW = 13% FAMILY LAW = 20% MĀORI LEGAL = 1%

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