Bartlett Law is a specialist workplace law firm, continuing the history of Bartlett Partners, established by Penelope Ryder-Lewis and Philip Bartlett in 1997. Prior to that Philip headed Macalister Mazengarb’s employment law practice and Penelope worked with him. The employment law practice of Macalister Mazengarb dates back to the 1930s.
Over the years we have all worked on a number of interesting and significant cases and projects, including:
Brickell v. Attorney-General 2 ERNZ 529 Details of caseMr Brickell suffered from post-traumatic stress disorder. He issued High Court proceedings against his former employer (NZ Police), seeking substantial damages for harm to his mental health caused by negligence and breach of statutory duty (unsafe system of work). The outcomes were findings of negligence and breach of statutory duty against the Police, with awards of substantial damages for the client. The case broke new legal ground, and is one of few successful “stress” cases.
Burns v. Chief Executive of Legal Services Agency 28 April 2004, WA 22A/04 Details of casePhilip acted for the Legal Services Agency and successfully defended a personal grievance claim where it was alleged that there was a breach of duty by the employer in raising concerns about performance and health. The Authority held mentioning disciplinary action in association with a performance improvement plan was not intimidatory action and that the employee resigned by choice.
CSU v.State Services Coordinating Committee  1 NZLR 742 (Court of Appeal) Details of caseThis case concerned a successful challenge to the wage freeze of the early 1980’s insofar as the freeze related to the state sector. Philip acted for the Combined State Unions.
Department of Labour v. Powermark New Zealand Ltd  DCR 224 Details of casePenelope successfully defended Powermark against a health and safety prosecution where an experienced linesman was injured felling a tree which his supervisor had specifically instructed him not to fell. The judge held that Powermark was not liable as the employee had disregarded the explicit instruction issued by his supervisor.
Murray v. A-G  1 ERNZ 184 (Employment Court) Details of caseThe Murrays were employed by the IRD after a rigorous selection process. During the course of their employment they revealed that they had pleaded guilty to benefit fraud charges. The IRD suspended and then dismissed them. The Murrays contended that they could not be dismissed for serious misconduct when the misconduct in question occurred months before they became IRD employees. The Court held that the dismissals were not justifiable so far as they purported to be based on serious misconduct; however, because it was made abundantly clear to the Murrays that their positions were positions of high trust, the dismissals were upheld as a matter of equity and good conscience.
Murray v. BC Group (2003) Ltd  3 NZLR 590 (Court of Appeal) Details of caseAn appeal under the Property Law Act 1952 concerning the appellants’ claim to entitlement to vehicular access to their residential property where the only access was a pedestrian walkway in some disrepair after they were denied access to the respondent’s driveway. Philip acted for the respondent and successfully opposed the appeal; the Court of Appeal finding the property was not “landlocked” and the current access was reasonable.
Nutter v. Telecom NZ Ltd  3 ERNZ 234 Employment Court Details of casePenelope represented Mr Nutter, who was successful in his claim that he had been unjustifiably summarily dismissed. Among other claims, Mr Nutter alleged his dismissal was not preceded by a formal warning as required under the disciplinary policy and the Employment Court agreed.
Ogilvy & Mather v. Turner (Court of Appeal)  1 NZLR 641 Details of casePhilip and Penelope acted for Mr Turner, a former employee of Ogilvy & Mather. Mr Turner was successful in his claim for wrongful dismissal (a common law claim). It was accepted that implied conditions of his employment were that the company would not without reasonable cause conduct itself in a manner calculated to destroy or damage the relationship of trust and confidence between them and it would act fairly and reasonably in its treatment of him, and in particular would give him adequate opportunity to answer any concerns it might have about his performance before reaching any decision to dismiss him. Mr Turner was awarded substantial damages.
Oughton v. NZPSA  2 NZLR 36 Details of caseThis is the leading case in a line of cases concerning the validity of strike notices. The Court of Appeal held that “summaries” of the previous strike notices containing apparent variations to them created uncertainty as to the effect and extent of the proposed action and the notices were therefore invalid and the proposed strike unlawful.
Poananga v. SSC  2 NZLR 385 (Court of Appeal) Details of caseThis case remains the leading authority in its area. The Court of Appeal held that within the public sector, the transfer of an employee from one part of the public sector to another for disciplinary reasons was invalid. Philip was solely responsible for this successful appeal. In another case in which Philip acted the Poananga principle was applied to a police officer: Walls v. Commissioner of Police  1 ERNZ 224.
Radio NZ v. Clark  1 ERNZ 270 (Court of Appeal) Details of caseThis case concerned calculation of severance entitlements and the meaning of “total ordinary pay” in this context. The Court of Appeal held that “total ordinary pay” was the total pay for the relevant 12-month period calculated on the basis of normal salary, and it did not include penal rates.
Re Leitch  1 NZLR 38 Details of caseThis case concerned the interpretation of a will, where the testatrix had failed to specify the intended recipients of certain property left under the will. The Court upheld Philip’s argument that the intended beneficiary was his client, a church.
Stewart v. Price Waterhouse Administration Ltd  ERNZ 360 Details of caseDefence of elements of penalty in health and safety prosecution for OOS.
Thorndon Antiques and Fine China Ltd v. Telecom Corporation of NZ Ltd (1999) 13 PRNZ 405 Details of casePenelope was junior counsel in this case in which Thorndon Antiques challenged Telecom’s decision to withdraw its collectable phone cards. Although the case did not go to full hearing, Thorndon Antiques successfully obtained relator consent from the Attorney-General to bring the case in its name.
Wall v. Livingston  1 NZLR 734 (Court of Appeal) Details of caseThis case involved an unsuccessful challenge to a certificate given by certifying consultants under the Contraception, Sterilisation and Abortion Act. Philip was junior counsel for one of the certifying consultants.
Wanganui District Council v. Tangaroa and Others  2 NZLR 706 (Moutoa Gardens case) Details of caseThis action was brought against three persons as “ostensible leaders or spokespersons” of those who occupied Moutoa Gardens in 1995. The Council sought a declaration as to title and orders for possession of the site. As the three representative occupiers took no part in the proceedings, the Court appointed an amicus curiae to assist it, who put the defendants case “proactively” within the limits of that role and of time. Penelope was junior counsel to the amicus.