Court blow for Telecom workers

By MATHEW DEARNALEY

Former Telecom workers suing the company for $22 million after alleged incapacitation from occupational overuse injuries have been knocked back by the Privy Council.

A panel of three law lords in London has rejected a petition lodged by a worker representing 83 others, mainly female telephone exchange and directory staff who were forced to retire on medical grounds or made redundant in the late 1990s.

Wellington woman Margaret Brittain's petition was a rare bid to get around a section of industrial law stopping appeals in employment cases from reaching the Privy Council, and its failure means the core of the workers' case against Telecom has been struck out.

The workers, most from Auckland, must now decide whether to seek a settlement with Telecom or return to the Employment Court with surviving claims - alleging the company dealt with them unfairly and dismissed some wrongfully on disability grounds.

Their lawyers held a preliminary meeting with Telecom last week, but company spokesman Andrew Bristol said afterwards it believed it owed them no obligations in view of decisions of the highest appeal judges.

Although the Engineering, Printing and Manufacturing Union subsidised the workers' costs as far as the Court of Appeal, it turned down a request to help them towards the Privy Council.

The petition challenged a Court of Appeal decision barring them from using an exception in previous legislation to gain damages from Telecom on top of accident compensation, which their lawyers say only about 10 per cent of them still receive.

They claimed Telecom breached an express term of their collective employment contracts guaranteeing protection from workplace hazards and compliance with a Labour Department code of practice for computer visual display units.

One worker, who told the Herald she had trouble holding a telephone or doing housework, said the company banned "micropauses" prescribed by the code and failed to ensure chairs and computer screens could be adjusted to prevent overuse injuries.

But the appeal judges ruled that the exception related only to extra payments written into contracts such as top-ups to normal accident compensation entitlements, rather than the damages the workers sought for losing their jobs and future employment prospects.

A lawyer for the workers, Brett Cunningham, said stigma associated with occupational overuse syndrome (OOS) meant few could find work even if their disabilities allowed it.

The remaining claim, alleging unfair dealing, was aimed at gaining damages for emotional suffering and humiliation, for which there was no accident compensation.

Mr Cunningham said his clients were, in effect, denied an appeal against a "first instance" decision, as the Employment Court referred the case directly to the Court of Appeal.

But the head of Telecom's defence, John Haigh, QC, said this was with the agreement of both parties and the Privy Council spent almost three hours hearing the petition - far longer than it gave a Jamaican who appealed unsuccessfully on the same day against a death sentence.

The Labour Department acknowledged in 1998 that occupational overuse syndrome had been a problem in Telecom, but said it decided against prosecuting the company in view of subsequent improvements.

Telecom has since contracted out its directory services to the international Sitel Corporation.