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A legal system, not a justice system

THE DOMINION POST - WEDNESDAY 16 MARCH 2011


A case that captured the headlines in Britain contains lessons for employers in New Zealand.

Flooring company owner Simon Cremer took the law into own hands when he caught Mark Gilbert stealing from him. Mr Gilbert is variously described as an employee and as a sub-contractor in the various reports.

Mr Gilbert had written a company cheque for £845 (NZ$1853.10) to himself, forging his employer’s signature on the cheque. The employer found out and frog-marched Mark Gilbert to the local police station with a sign around his neck saying “thief – I stole £845, am on my way to the police station”.

Mr Gilbert admitted the crime to the police and was given a caution. He sued his employer for £40,000 (NZ$87,721.80) for false imprisonment, in what appeared to be both criminal and civil actions. He claimed that the embarrassment of being paraded through the streets had left him too traumatised to work for two years. He claimed he feared for his life after he was allegedly punched, tied up and forced to read the thief sign aloud three times before being bundled into the back of a van to ride into High Street to be publicly shamed. Mr Gilbert said that it was almost a relief when he saw the police station in sight rather than a remote field.

On the other hand Mr Cremer, the employer, vehemently denied Mr Gilbert’s allegations of violence. He did, however, admit to tying the man up because he was worried about how he might react when confronted he ‘feared for his safety’. He added that they even put carpet down in the back of the van so Mr Gilbert wouldn’t get hurt.

The employer said it would be the most painful cheque he has ever had to write, and the worst part of it is that he would never have been put in the position if Mr Gilbert hadn’t stolen from him in the first place.

Mr Cremer claimed to be a person with old-fashioned values who was very angry. He said Mr Gilbert deserved to be humiliated. However given the implications he said he would have to think twice about doing it again, but right or wrong he stands by it. He claims society has just gone compensation crazy.

As a prosecution a possible sentence for Mr Cremer’s actions is apparently life imprisonment. The civil case yields the remedy of damages. Before the litigation was resolved in the Courts the employer paid Mr Gilbert £5,000 (NZ$10965.20) in compensation and £8,000 (NZ$17544.40) towards his legal costs. The employer commented “I think it’s absolutely disgusting that he was ever able to sue me after he had stolen from me. I don’t want to give him a penny after what he did, so it really sticks in my throat. He stole from me yet he is the one who is walking away with the money.”

Mr Gilbert had sought two years’ lost earnings and compensation for the distress he suffered. His claim had been for the trauma, distress and psychological help he said he needed after the incident.

The employer, who we are told is a father of two, said he could not risk the expense involved in the litigation and paid an out-of-Court settlement to Gilbert plus a contribution towards his legal fees.

Mr Cremer, of Little Maplestead, Essex said “It would have cost me £25,000 (NZ$54826.10) just to go to Court, so I had no option but to settle out of Court. It would financially ruin me, it would break me. I would lose my business and I would risk losing my home because I would have to re-mortgage it. I can’t really afford a payout like this – times are hard for business. This has left me no faith in the justice system, absolutely none.”

Mr Gilbert, formerly of Colchester has, we are told, moved out of the area and is thought to be living in Bristol.

If the same thing happened in New Zealand the outcome would be the same for flooring company owner Simon Cremer. If Mr Gilbert was an employee when this happened he could expect to receive substantial damages for breaches of implied terms in his employment agreement that the employer will treat him fairly and reasonably and in a way that promotes trust and confidence.

If he was a contractor, he would certainly have the ability to pursue a civil claim for false imprisonment and also seek significant compensation.

Whilst everyone would have sympathy for the employer here I think there would be very few readers who would agree with what occurred. The flooring company owner went far too far in terms of taking the law into his own hands. Violence is likely to follow if people behave in such a manner. The police and Courts are there to deal with thieving. An employer’s remedy is to terminate the agreement and hand the matter over to the authorities. The road ahead would be very rough indeed if employers were allowed to behave in the way that Mr Cremer did in parading Mark Gilbert through Witham.

Cullen - The Employment Law Firm is one of only eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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