The first Chief Judge of the Employment Court, Tom Goddard was known for his strong advocacy of the principle of fairness in New Zealand’s employment law and for his defence of the role of the specialist court.
“Tom is remembered by colleagues for his formidable intellect, his unrelenting grip on the principles he saw as fundamentally underpinning labour law, his dedication and hard work, and his personal and professional resilience,” the Chief Judge of the Employment Court, Christina Inglis, says.
Tom Goddard died in Wellington on 14 March 2019 after a lengthy illness. He was 81.
Tomasz Goldwag was born in Warsaw, Poland on 20 May 1937. His parents, Estera (Tuska) and Naum were both lawyers and members of Warsaw's Jewish community.
"The family was on holiday in eastern Poland - in a town called Bialystok - when the Soviet Union invaded Poland in September 1939," says son David Goddard QC. "Dad was two years old. The family ended up behind Soviet lines. The Soviets moved them to a 'safe place' behind enemy lines - some 5,000 km behind enemy lines, to an isolated forestry camp near Archangel right up in the Arctic Circle. Dad always liked the idea that at the age of two he was seen as a threat to the Soviet Union. He liked to think they were right."
Somehow the family survived. As Tom Goddard later said at his mother Tuska's funeral, they lived a precarious life of a "chameleon-like invisibility": "The family adopted the pan-Slavonic name 'Godlewski', and Dad had to remember it and act out his cover," David Goddard says. "The hardships that had to be endured were, as Dad put it at Tuska's funeral, impossible to describe in any credible way. The scarcity and monotony of food; the challenge of heating their home through the harsh winters by making - with their bare hands - fuel bricks from cow pats and mud. Living next door to a night soil pond. The fear of arbitrary arrest and execution. Illness - Dad contracted pneumonia and the family legend is that his father carried him 10km through snow to the nearest hospital. That prompted a move to Kazakhstan, in search of a milder climate - where Dad promptly contracted malaria. All of this before he was ten."
The war ended and the family was able to return to Poland. However, those few members of the Jewish community who had survived the holocaust were not safe under the new rulers. The family had settled in the apartment owned by Tom's father's great-aunt who was a senior diplomat posted to Geneva. When she was recalled and liquidated, they knew it was time to leave. They managed to leave Poland and join relatives in Australia and New Zealand, with Wellington ultimately winning out in 1948.
Wellington
On arrival the family name was changed to Goddard. David Goddard says his father set out to blend in, learning to speak English with a kiwi accent and to play cricket.
"He refused to speak Polish to his parents. A few years later, he refused to have a bar mitzvah - which caused some controversy in the family, and in Wellington's small Jewish community. Dad has never been a respecter of authority for its own sake, and that tendency was apparent very early on."
From Karori Normal School he went to Wellington College and then to Victoria University of Wellington in 1955 where he studied French and Latin, first graduating with a BA in French and Latin in 1957 and then completing a MA(Hons) in French in 1958, with a passion for the works of Voltaire. David Goddard says his father wanted to travel in France and continue his study of French literature, but his parents managed to persuade him to stay and shift his focus to the law. He graduated LLB in 1961.
Admitted as a barrister and solicitor in 1962, young Tom Goddard moved into legal practice. He focused on a range of common law areas, specialising in employment law, equity, administrative law, torts, contract law and jurisprudence. In pre-ACC days he was often involved in personal injury proceedings. He was in sole practice from 1973 to 1978, but took up a partnership in the firm of Alexander, JH & Julia Dunn in 1978 where he joined specialist defamation lawyer Jim Dunn.
"He developed a particular enthusiasm for, and expertise in, the fields of defamation and employment law," David Goddard says. "When we talked in recent months about his time in practice, Dad told me he was especially proud of the work he did pushing the boundaries of the freedom of the press in a series of leading cases. He cared deeply about freedom of expression - and,... about holding the powerful to account for the way in which they exercise that power."
When the Court of Appeal dismissed the appeal in Taylor v Beere [1982] 1 NZLR 81, TG Goddard was counsel for the respondent (and the successful plaintiff in the High Court). The landmark case held that, in an appropriate case, exemplary damages are recoverable in New Zealand for defamation.
The judiciary
In 1989 Tom Goddard was appointed a Judge of the then Labour Court, and, shortly afterwards, Chief Judge. A change of government and philosophy saw the introduction of the Employment Contracts Act 1991. This made radical changes to employment law, making union membership voluntary and introducing individual and collective employment contracts.
The legislation also established an Employment Tribunal and the Employment Court. Thomas Goddard, Chief Judge of the Labour Court, became Chief Judge of the Employment Court. He was to hold that role for 14 years until 2005.
One of the key jurisdictional changes was in section 3 which gave the Employment Court exclusive jurisdiction over all actions which were based on a contract of employment. The High Court was removed from the picture and there was a limited right of appeal to the Court of Appeal on questions of law only. One result was a long series of disagreements through the 1990s between the Chief Judge of the Employment Court and the Court of Appeal, particularly on the concept of redundancy.
"Overseas precedents ... provided little assistance. There has been, therefore, fertile ground for the growth of a new and uniquely New Zealand [employment] jurisprudence, and the Employment Court under Chief Judge Goddard has demonstrated no reluctance to cultivate it," one commentator said (Kit Toogood, "Facilitating and Regulating Employment" [2002] VUWLawRw 40).
In the mid-1990s the very future of the Employment Court was at issue. Employment law academic Gordon Anderson describes an "unparalleled attack on the Employment Court and its members with the Court of Appeal being portrayed as the defender of the true intent of the Employment Contracts Act" and also points to a media campaign "that was probably unique in New Zealand for its vitriolic and sustained and highly personalised attack on the Employment Court and its Judges" ("Employment Law: The Richardson Years" [2002] VUWLawRw 887. The Chief Judge of the Employment Court was at the centre of the storm. He was up to the challenge and delivered many decisions which upheld the principles of fairness in employment relationships.
“As Chief Judge, Tom oversaw the transition not just of two different iterations of the specialist Employment Court, but also of significantly different pieces of legislation,” Chief Judge Inglis says.
“In this role he presided over the Court through an era of compulsory unionism and its subsequent demise, followed by a period characterised by many as reflecting a purely contractual approach to employment relationships, through to the more recent focus on mutual obligations of good faith between employer and employee. Throughout, Tom was a strong voice for fair dealing according to the rule of law.
“The 1990s proved to be a particularly testing time for the Court, and for Tom as Chief Judge. In a paper delivered in 1997, he referred to ‘an unremitting campaign from some quarters for the abolition of the Employment Court’ and criticism directed at the Court which ‘even to lukewarm supporters of the rule of law must have seemed disconcerting and disquieting.’ This period has been described as a time when there was an ‘almost continuous attack on the specialist jurisdiction’.
David Goddard QC says his father was, at times, subject to extraordinary and unjustified attacks by right wing commentators and some sections of the media for his "liberal" views.
"This was mostly nonsense, of course. But Dad saw nothing to be ashamed of in seeking to apply the law in a way that ensured employees were not deprived of their contractual rights, and that the discretionary powers of employers were not abused. The 1991 reforms had not abolished these basic protections, contrary to the hopes and misguided beliefs of some commentators, and the court continued to ensure they were respected."
The role of the judiciary meant that Thomas Goddard could not respond to the criticisms.
"Nor, true to his principles, would he have wanted to stifle public debate - however ill-informed and biased," says David Goddard. "He just kept doing his job, ensuring that he - and the court he led - did justice in particular cases, and developed the law in a coherent and principled way."
The judicial legacy
Chief Judge Inglis says Tom Goddard’s legal legacy is substantial.
“During his time on the bench he delivered in excess of 1000 substantive judgments, many of which set the scene for the way in which the law was to develop over time and which are routinely cited as authority for what are now uncontroversial and well-established principles.”
David Goddard QC says many lawyers and advocates have told him what a pleasure it was to appear before Chief Judge Goddard.
"Their comments echoed what Business New Zealand said at his retirement (after describing him as 'liberal', which Dad would have seen as a badge of honour): 'Judge Goddard was erudite, eloquent and responsive, and was a good leader as Chief Judge of the Employment Court'."
At a valedictory sitting to mark his retirement from the Employment Court on 3 May 2013, Judge Barrie Travis paid tribute to Tom Goddard. Along with Judge Goddard, Judge Travis was appointed to the Labour Court in 1989. Of Chief Judge Tom Goddard he said:
"He was a great leader, unselfish, generous and fearless. He was a stalwart through some serious crises and his support could always be relied on. His legal knowledge was unsurpassed. He knew also what the law should be and was ahead of his times. His prescient, beautifully expressed judgments developed employment law and now form part of the key provisions in the current legislation. I regard him as the father of good faith in New Zealand."
Chief Judge Goddard's determination not to bow to pressure and to apply the law according to the principles he believed should be upheld won him respect. In McCulloch v New Zealand Fire Service Commission [1998] 3 ERNZ 378 he did not support the Commission's hamfisted attempt to disestablish occupational positions: "On the findings that I have made, the defendant did not comport itself as a fair and reasonable employer, let alone as a good or ethical one... In the end, the defendant is shown to be an employer who was willing deliberately to breach its employment contract obligations... I would add that a good employer would know and trust its employees and would not need or desire to run a police security check on them or intrude in other inappropriate ways into their private lives - for instance, asking them to disclose of what illnesses their family members died."
His decision resonated with the plaintiffs in that case over the years. The New Zealand Professional Firefighters Union remembered the judge who had decided in their favour with a tribute on news of his death: "It is our sad duty to advise members that Tom Goddard passed away last Thursday. Tom was the Judge who heard the union's successful opposition to the mass sacking of firefighters in the 1990s. It is quite fair to say that firefighters today owe their employment and conditions of employment in no small measure to the wisdom and sense of justice of Tom Goddard. A fine man and a friend of firefighters."
After the judiciary
Shortly after his retirement from the bench on 19 May 2005, Thomas Goddard was in the employment law spotlight again. In August 2005 the Tongan government and Interim Public Service Association agreed with the New Zealand Government that Tom Goddard could review the pay claims of Tongan civil servants, who had gone on strike over the matter. It wasn't an easy process, however. The New Zealand negotiating team arrived in Tonga, to be told by the strikers that they no longer would participate in the mediation process. "The process belongs to the parties", Tom Goddard told the New Zealand Herald, while declining to comment further. However, by 27 August he was forced to admit there was nothing he could do. He returned to New Zealand saying he had not even been able to get the parties to agree on a process. The strike, which became entwined with moves for wider democratic reform, was eventually settled in favour of the unions.
Chief Judge Goddard's judicial service was recognised in the New Year Honours 2006 when he was appointed a Companion of the New Zealand Order of Merit for services to the Employment Court.
When the Goldwag/Goddard family settled in Wellington in 1948, the fact that Tom's mother's sister was living there was the deciding factor. His aunt Suzanne Krynski married Michael Borrin. They established a very successful clothing company. Their only son, Ian - Tom's cousin - entered the law and became a District Court Judge. On his death in March 2016 he left a substantial bequest to establish the Michael and Suzanne Borrin Foundation to support legal research, education and scholarship. David Goddard QC is chairperson of the grants and scholarship committee and Thomas Goddard was also a member of the committee.
At his death Chief Judge Tom Goddard was the much loved partner of Alida and father of David, Michael, John and Ryk.