PIERRE LE NOEL AND EXECUTIVE RECUITERS INTERNATIONAL LTD AGAINST NEW ZEALAND HERALD

Case Number: 2139

Council Meeting: SEPTEMBER 2010

Verdict: Upheld

Publication: New Zealand Herald

Ruling Categories: Balance, Lack Of
Unfair Coverage

A complaint by Pierre Le Noel and Executive Recruiters International Limited (ERI) against four articles appearing in the New Zealand Herald has been upheld on the grounds of lack of balance and fairness.

The Articles
The first article appeared on 17 May 2010 under the heading:
Migrant felt her boss was blackmailing her
The standfirst read:
Contract was altered to deceive Immigration, says worker.
The first article referred to an allegation made by an immigrant to the Employment Court (actually the Employment Remuneration Authority) that she had been asked to pay her own taxes and wages in order to stay legally in New Zealand. She said she was asked to do this “in order to deceive Immigration officials into thinking she was being employed at $55,000… for her to meet skilled migration requirements.” The article noted that the employer denied the allegations “and Mr le Noel claimed she had full knowledge and was in agreement of the arrangement between them.” The immigrant’s evidence was that she felt that she was being blackmailed by Mr Le Noel.
Coincidentally, the decision of the Employment Relations Authority was issued on the day that the article appeared. As a result of a phone call from Jenny Le Noel, the NZ Herald, on 18 May, published the second article headed:
Migrant loses grievance case against employer
The standfirst read:
Employment authority finds South African woman not a victim of constructive dismissal.
The first paragraph of the article stated:
A woman has lost a case in which she claimed her employer asked her to pay her own taxes and wages to support her residency application.
It also stated:
The Authority also found that Pierre Le Noel, who she accused of blackmailing her into working for nothing, was not her employer and therefore had no liability as a party to her employment contract.
The article then summarised the decision which included a finding that ERI had unilaterally varied the original terms and conditions, which was a serious breach of the employment agreement. However, the immigrant had acquiesced in the variation and had not been constructively dismissed. The claim, therefore, failed.
The third article of 22 May 2010 stated:
Migrants gaining residency via scam

The standfirst read:
Immigrants paying own wages and taxes for employers’ support with application.
The lengthy article dealt with the practice of immigrants being asked to pay their own wages and taxes to obtain permanent New Zealand residency. The article included:
This week, South African migrant worker, Jacqueline Sydow, lost her personal grievance case in the Employment Relations Authority after alleging that her employer, Executive Recruiters International, had asked her to pay her own taxes and wages to support her residency application.
The final article published on 25 May 2010 was headed:
Employment-case loser told to leave NZ
The article referred to Ms Sydow’s work permit being revoked. It stated she had lost the employment case against her employer but also included:
Miss Sydow claimed Executive Recruiters International asked her to pay her own taxes and wages to support her residency application.
It went on to say that she lost her case but there was a further inference to her allegations when it noted that the Head of Immigration New Zealand:
… said migrants with information about arrangements of such a nature were encouraged to come forward, but the agency could not guarantee immunity from enforcement action.
The Complaint
The complaint is that the articles were inaccurate, misleading, and did not offer a balanced response. The background was the employment dispute in which the Employment Relations Authority determined that there was no case against Mr Le Noel or ERI. Subsequent to the complaint being lodged, Ms Sydow was ordered to pay court costs. Notwithstanding the result of the court proceeding, the NZ Herald published these articles which contained “New allegations of blackmail and fraud”. The complainants complained that in these articles the newspaper repeated the unsubstantiated and previously unpresented claims by Ms Sydow of blackmail and fraud. The articles were slanted to indicate that these claims were the basis of the case.
Although the complainants won the court case, their complaint is that the articles damaged the reputation of Mr Le Noel and ERI and that the NZ Herald continued in the series of articles to make allegations which they knew to be incorrect.
In response to the NZ Herald’s allegation that Mrs Le Noel, in her telephone conversation with the deputy editor, said that if they had been asked they would not have commented anyway, Mrs Le Noel’s position is that it was the deputy editor who stated “You would not have commented anyway”. The complainant’s position is that at no time did the NZ Herald seek comment from them and therefore was unfair and unbalanced.

The Newspaper’s Position
The NZ Herald denies that its coverage was misleading, inaccurate and lacked balance. Its position is that it conformed to normal reporting standards of tribunals and rightly included follow-up stories on issues arising from the case.
The first article was based on the briefs of evidence provided for the case by Ms Sydow and Mr Le Noel. The NZ Herald specifically rejected the suggestion that the allegations of blackmail and fraud were new and previously unpresented because they appeared in the briefs of evidence. The newspaper also makes the point that its story reported something which the complainants prefer to ignore, namely that the Authority found there had been a serious breach of the employment agreement.
The editor states that after publication of the article, Mrs Le Noel phoned several times, making allegations similar to those now in the complaint and threatening legal action for defamation. The deputy editor of the NZ Herald phoned Mrs Le Noel to discuss the complaints. He refused her request to remove the story from the newspaper’s website but gave an undertaking that the report of the ERA ruling would appear in the next day’s paper in the same position as the original story. This the newspaper did, in the second article, and it claims to have accurately summarised the reasons for the ERA rejecting Ms Sydow’s claim. Shortly thereafter, the newspaper’s legal counsel replied to a written letter from Mr and Mrs Le Noel alleging defamation and claimed statutory qualified privilege.
The third article was a broader story on the practice of migrants getting fake jobs to support visa applications. It mentioned the Sydow case in passing and that the complainant had lost her case.
The fourth article was merely a final story to tie up the loose ends after the revocation of Ms Sydow’s work permit.

Discussion
It was a coincidence that the first article appeared on the day that the ERA decision was released. That article is clearly based on the briefs of evidence provided to the court. The allegations of blackmail were in Ms Sydow’s brief and were reported as such. The article referred to the allegation that Ms Sydow was asked to pay her own taxes and wages and that these allegations were denied by the complainants.
On the face of it, the article was nothing more than normal reporting of allegations made in court and the respondent’s response to those allegations. The complainants allege that a reading of the article would lead to the conclusion that Mr Le Noel was replying to Ms Sydow’s allegations re fraud and paying her own wages when he was quoted as saying that “She had full knowledge and was in agreement of the arrangement between them”. The Council accepts that this is a conclusion that a reader could come to and the matter could have, and perhaps should have, been stated more clearly. However, in the Council’s view, any ambiguity is sufficiently immaterial to uphold the complaint in respect of this article.
The second article was, in the main, an accurate report of the decision of the ERA. The introductory paragraph referred to Ms Sydow’s claim that she had been asked to pay her own taxes and wages. It also added a gloss to the finding that Mr Le Noel was not liable by noting Ms Sydow accused him of blackmailing her into working for nothing. Thus, the article summarized the decision of the ERA but repeated claims adverse to Mr Le Noel, even though those claims had not been referred to either directly or indirectly in the ERA decision.
The third article was a general article and the only matter in respect of which there is a complaint is the quotation referred to above in which Ms Sydow alleged that ERI had asked her to pay her own taxes and wages to support her residency application.
The final article was a “tidy up” article reporting on Ms Sydow having her work permit revoked and being asked to leave the country. It also repeated her claim that ERI had asked her to pay her own taxes and wages to support her residency application.
The NZ Herald was entitled to report the facts included in the first article. It included Ms Sydow’s allegation of blackmail and that she was asked to work for nothing. Those allegations were repeated in the second article when the newspaper reported on the ERA decision, although there was no mention in that decision to those allegations. It then repeated the allegations in the general third article and in the fourth tidy-up article.
Allegations that a person has asked an employee to pay her own taxes and wages in order to obtain permanent residency and the blackmailing allegations are serious allegations. While the NZ Herald made it clear that they were allegations, it repeated them in four articles and in the last three of those articles would have known that although the ERA knew of the allegations, it did not refer to them in its decision. This may have been because the ERA determined that the allegations were not relevant to the issue in the case but the failure to comment on them could not advance the allegations.
Although an inference can perhaps be drawn from the fact that Mr Le Noel did not specifically deny the allegations in his brief of evidence, the continued publication of this allegation is likely to reflect on the integrity of Mr Le Noel and the ERI. In the circumstances, the Council is of the view that the NZ Herald should have, before repeating the allegations in the third and fourth articles, specifically sought from Mr Le Noel his response to the allegations. In not doing so, it put out an unbalanced story which may have been unfair to the complainants. For this reason, the complaint is upheld on the grounds of lack of fairness and balance.
The website version of these articles is to be flagged as having been subject to a Press Council ruling and a link to the adjudication on the Press Council website is to be provided.

Press Council members considering this complaint were Barry Paterson (Chairman), Kate Coughlan, Sandy Gill, Penny Harding, Keith Lees, Lynn Scott and Stephen Stewart.

John Roughan took no part in the consideration of this complaint.