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Adsett v Wellesley Ltd
13 Mar 2007, D Asher, WA 40/07, (8 pages)
UNJUSTIED DISADVANTAGE - No written employment agreement -
Applicant responded to advertisement for camp manager - Claimed permanently
employed as camp manager with trial period - Respondent claimed offered casual
work at camp - Applicant shown around camp by other employee ("S")
- S gave evidence respondent told him applicant full-time manager when S not at
camp site - Also said applicant consistently referred to as camp manager -
Worked for respondent little over two weeks - Authority preferred applicant's
evidence employed as permanent camp manager - Had respondent complied with
obligation to provide employment agreement, written record of work to be
performed would have existed - Was major cause of employment relationship
problem - No reference to casual employment in advertisement or at interview -
While both parties' evidence credible, applicant's preferred due to S's
supporting evidence - Authority accepted S independent witness - Fact hourly
rate equated to salary offered and time sheets not required consistent with
applicant's understanding - Respondent repudiated agreement by not requiring
full time attendance and reducing pay - Significantly disadvantaged -
Unjustified disadvantage - UNJUSTIFIED DISMISSAL - Constructive dismissal -
Fairly and reasonably open to applicant to regard changes amounted to
termination of employment - In alternative, had Authority found against
unjustified dismissal, would have been appropriate to award significant
penalties for material breaches of Employment Relations Act 2000 - Would have
directed most if not all monies be paid to applicant - Respondent's failures
entirely responsible for bringing of matter - Constructive dismissal - PENALTY -
Respondent accepted breached obligation to provide employment agreement -
Failure significant contributor to finding - Also failed to advise applicant
could seek independent advice and give reasonable opportunity to seek it - Harm
caused by breach largely remedied by significant remedies awarded to applicant -
Nominal penalty - Length of service two weeks - Camp
manager
Result: Application granted ; Reimbursement of lost wages ($8,682)(three months ten days) ; Compensation for humiliation etc ($6,000) ; Penalty ($100)(To Crown) ; Costs reserved
Gilbert v EDI Electrical Ltd
28 Feb 2007, J Cricthon, CA 20/07, (8 pages)
UNJUSTIFIED DISMISSAL - Applicant received sports injury - Return
to work delayed as injury took longer to heal than anticipated - Applicant
attempted to contact respondent on cell phone about progress and left medical
certificates in mail box - Parties had no other contact - Respondent claimed
applicant told not to call cell phone and regularly did not listen to messages -
On recovery applicant returned to work with father and claimed told no job for
him - Respondent claimed said was no work at that time - Whether dismissed -
Respondent had responsibility to ensure applicant clear no work available
"at present" - Took no steps to disabuse applicant of view had
lost job - Authority not satisfied parties did all could have done to
communicate - Applicant and father interpreted meeting as dismissal - On balance
of probabilities not persuaded dismissal did not occur - Unjustified dismissal -
UNJUSTIFIED DISADVANTAGE - Respondent failed to deal prudently and sensibly with
absence of information - Respondent in stronger position - Had duty to take all
reasonable steps to ensure information required from applicant provided -
Unjustified action - Also disadvantaged by respondent's delay in complying with
request by ACC for information - Due to unreasonable delay earnings related
compensation payment delayed - Unjustified disadvantage - Remedies - Applicant
failed to pursue other means of contacting respondent - Obliged to alert
prolonged absence and explain basis for it - Contributory conduct 10 per cent -
ARREARS OF HOLIDAY PAY - Respondent claimed agreement applicant would receive
sick pay prior to entitlement but if left job within six months would forfeit
right to holiday pay - No evidence agreement existed - However, such agreement
without force as avoided effect of minimum rights in Holidays Act 2003 - Arrears
due and owing - Length of service three months one week - Electrical
technician
Result: Application granted ; Reimbursement of lost wages ($7,411.69) ; Compensation for humiliation etc (Unjustified dismissal)($5,000 reduced to $4,500) ; (Unjustified disadvantage)($4,000 reduced to $3,600) ; Arrears of holiday pay (Quantum to be determined) ; Costs reserved
Horo-Kirwera v Te Ha O Te Oranga O Ngati Whatua
8 Aug 2006, M Urlich, AA 257/06, (6 pages)
UNJUSTIFIED DISADVANTAGE - Applicant claimed grievances arose
from steps respondent took to change organisational structure - Respondent
submitted organisational review carried out fairly and reasonably - Maintained
applicant not dismissed and position existed for her to take up - General
Manager ("GM") announced changed structure and new roles at group
meeting - Applicant raised concerns with GM about changes and manner in which
announced - Took from his response would be no further discussion of issue -
Applicant later told new role would also be changing - Applicant went on stress
leave and sought exit package - Unfair and insensitive to advise applicant of
impact of restructuring on her in front of staff who reported to her, and
announce further restructuring by group email - Fair and reasonable that
employee whose unique role to be affected by restructuring told in private -
Further unfairness as not alerted to right to seek advice and have
representative present - Respondent unreasonably failed to consult applicant
about restructuring proposal - Unreasonably failed to take up applicant's
subsequent offer to consult over restructuring, which presented opportunity to
remedy previous failure - Accepted respondent's intention was to find
redeployment options for all affected staff - Failed to treat applicant fairly
and sensitively through restructuring process - Unjustified disadvantage -
UNJUSTIFIED DISMISSAL - Constructive dismissal - Applicant never returned from
stress leave - Clear applicant's original position no longer existed and left
with fraction of former duties - Appropriate to explore redeployment options -
Nothing happened after respondent provided information about new position - No
resignation or dismissal - No evidence to support claim during stress leave
respondent repudiated employment agreement and applicant accepted repudiation -
No constructive dismissal - Length of service three years - Operations
manager
Result: Application dismissed (Unjustified dismissal) ; Application granted (Unjustified disadvantage) ; Compensation for humiliation etc ($6,000) ; Costs reserved
James v John Webster Chief Executive Officer Unitec Institute of Technology
4 Aug 2006, RA Monaghan, AA 256/06, (19 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Summary dismissal -
Applicant introduced restructuring proposal at respondent - Tutors formed group
to oppose it - "Get well" card circulated in academic community -
Claimed respondent "sick" institution for employing applicant and
listed allegations about him - Card prompted investigation - Applicant suspended
- Respondent dismissed on basis applicant: (1) Failed to discharge responsible
stewardship of resources when waived fees of two students failing to discharge;
(2) pursued personal relationship with student ("C") after waiving
her fees; (3) and (4) bullied or threatened colleagues in two incidents - Not
unfair investigation uncovered information forming ground of dismissal -
Reasonably concluded C more credible witness - Applicant previously received
informal warnings and counselling about "inappropriate" behaviour
- Not case where prior disciplinary warnings directly invoked to support
dismissal - Respondent not estopped from considering employment history - No
failure to properly investigate actions of group - No evidence group set on
undermining applicant or securing his dismissal - Claimed respondent failed to
provide documents in breach of Privacy Act 1993 - No jurisdiction to determine
such breaches - No evidence relevant information not put to applicant - Grounds
(1) and (2) serious misconduct justifying dismissal - (1) Reasonable conclusion
waiver of fees deeply impaired or destructive of trust and confidence and
failure to follow procedure would have detrimental effect on respondent -
Conduct may have brought respondent into disrepute - (2) Pursuing personal
relationship not serious misconduct in itself - However, it came at end of
course of conduct following waiver of fees - Reasonable conclusion conduct
capable of bringing respondent into disrepute and of amounting to serious
misconduct under disciplinary policy - Grounds (3) and (4) less than
satisfactory conduct but reinforced reasonableness of respondent's overall loss
of trust and confidence - In all circumstances dismissal open to respondent -
Dismissal justified - UNJUSTIFIED DISADVANTAGE - Suspension enabled
investigation to proceed without ongoing conflict - Applicant warned of
possibility of suspension and reasons for it before decision made - Suspension
justified - No disadvantage on any grounds submitted - Length of service nine
years - School department head
Result: Application dismissed ; Costs reserved
Kneebone v Schizophrenia Fellowship Waikato Incorporated
13 Feb 2007, V Campbell, AA 31/07, (41 pages)
UNJUSTIFIED DISADVANTAGE - Applicant claimed subjected to several
incidents of bullying by co-worker ("M") - Alleged respondent
breached duty to provide safe workplace - Also claimed breached trust,
confidence and good faith - Respondent made policy change which forbade
applicant from having family members as clients - Disadvantaged by manner change
implemented - Change heightened applicant's perception of bullying - Received
written warning for incident with committee member - Burden to show proper and
impartial consideration given to applicant's explanation not discharged -
Disadvantaged by written warning - While timing unfortunate, warning did not
breach obligation to act in good faith - Fair and reasonable employer would have
appointed different committee member to investigate incident and decide
disciplinary action - Actions contributed significantly to applicant's
deteriorating health - Unjustified disadvantage - UNJUSTIFIED DISMISSAL -
Constructive dismissal - Respondent unaware applicant suffered from seizures -
Resigned after period of sick leave - Claimed respondent's action made it
untenable to continue working given effect on health - No evidence M intended to
undermine or cause fear or distress in applicant or that behaviour intimidating,
malicious or insulting - Respondent met obligations when investigated
applicant's concerns and attempted to resolve them - Reached reasonable
conclusion source of problem personality clash - Respondent did everything
reasonably could in light of applicant's refusal to participate in mediation and
resolution processes - On balance of probability, respondent not responsible for
applicant's situation - Allegations serious and evidence needed to be convincing
- Applicant and M had difficulties working together but did not mean bullying
occurred - Facts did not support constructive dismissal finding - No
constructive dismissal - Authority satisfied claims relating to constructive
dismissal, breaches of Health and Safety in Employment Act 1992, and good faith
provisions relied on same facts - Those claims sufficiently addressed by
findings related to constructive dismissal - Remedies - Applicant rude and
uncooperative in incident with co-workers - Contributory conduct 25 percent -
Length of service five years - Mental health
worker
Result: Application granted (Unjustified disadvantage) ; Compensation for humiliation etc ($6,000 reduced to $4,500) ; Application dismissed (Unjustified dismissal) ; Costs reserved
Ponsonby v Torlesse Wines Ltd
2 Aug 2006, H Doyle, CA 114/06, (11 pages)
UNJUSTIFIED DISMISSAL - Constructive dismissal - Applicant worked
from home as wine sales representative - Respondent in poor financial position,
believed urgent changes necessary - Respondent concerned about applicant's sales
and reporting - Requested applicant immediately change from home base to
warehouse and purchase cell phone on behalf of respondent - Respondent
introduced changes to way applicant worked and conducted performance meeting -
Applicant claimed meeting "traumatic" - Also saw newspaper
advertisement for salesperson at respondent - Applicant took stress leave -
Claimed subjected to course of conduct by respondent breaching its duty to
provide fair and reasonable treatment and safe workplace - Respondent claimed
resigned following reasonable performance management of sales level - Authority
satisfied resignation attributable to respondent's actions rather than other
reasons - Meeting not abusive or so unreasonable to conclude conducted in
dismissive or repudiatory manner - Entitled to raise performance concerns and
advise wanted improvement - On balance of probabilities no deliberate attempt to
mislead applicant about advertisement or that additional salesperson sought to
replace her - Insensitive letter to applicant on stress leave not actions of
fair and reasonable employer - Not acknowledging concerns raised by applicant
after meeting not repudiatory conduct - Communications while on stress leave not
blanket disregard of obligation to provide safe work environment - No course of
conduct with dominant purpose of coercing resignation - Breaches not
sufficiently serious to make substantial risk of resignation reasonably
foreseeable - No constructive dismissal - UNJUSTIFIED DISADVANTAGE - Respondent
made too many demands and changes overwhelming applicant - Disadvantaged by
changes including request to work at warehouse and purchase cell phone - Led
applicant to believe was absence of trust in her - No consultation - Should not
have sent letter pressuring applicant about performance while on stress leave -
Unjustified disadvantage - Length of service one year one month - Sales
representative
Result: Application dismissed (Unjustified dismissal) ; Application granted (Unjustified disadvantage) ; Compensation for humiliation etc ($6,500) ; Costs reserved
Raddock v Air New Zealand Ltd
19 Mar 2007, V Campbell, AA 79/07, (8 pages)
UNJUSTIFIED DISADVANTAGE - Applicant alleged disadvantaged
when randomly selected to take drug test - Applicant's role
considered "safety sensitive" under respondent's drug
testing policy - Policy already considered in NZ Amalgamated Engineering
Printing and Manufacturing Union Inc and Ors v Air New Zealand Ltd and Anor
(cited below) - Pursuant to Employment Court directive, respondent consulted
with applicant's union on definition of "safety sensitive"
areas and roles - Union responsible for obtaining feedback from members
- Applicant claimed personally not consulted and failure meant unaware
role caught in random testing regime - Authority did not accept applicant
unaware role caught in classification of "safety sensitive"
- Respondent met obligations to consult union and affected employees
- Not satisfied applicant disadvantaged - Even if random selection
amounted to disadvantage, Authority not satisfied unjustified - Also,
applicant took test and returned negative result - No further action taken
by respondent - Evidence did not go far enough to justify disadvantage
finding - Had applicant refused test and been subject to investigation and
disciplinary action, result may have been different - No unjustified
disadvantage - Length of service not specified - Logistics
Controller
Result: Application dismissed ; Costs reserved
Stevens v Unibag Packaging Ltd
1 Mar 2007, G J Wood, WA 32/07, (10 pages)
UNJUSTIFIED DISMISSAL - Whether dismissed or abandoned
employment - Constructive dismissal - Applicant 16 years old -
Raised concerns with union about treatment by supervisor, and pay - Met with
manager, conversation focused on pay concerns - Insulted by supervisor on
return from meeting - Applicant left work early once supervisor gone
- Authority considered left because had enough of supervisor's
treatment and upset pay rate not changing - Applicant absent two days
without contact - Away longer than permitted by abandonment clause in
employment agreement - On return to work, given letter terminating
employment - Applicant lacked good cause to absent himself without
notification - Claimed no access to phone - While correct, not good
cause for failure to contact respondent - Although applicant subject to
unacceptable treatment, could have taken up matter with manager - Fact
prepared to wait until supervisor left showed could have dealt with concerns
while remaining at work - Lwin v A Honest International Co Ltd (cited
below) distinguished as applicant had abandonment clause in agreement -
Respondent under no obligation to contact applicant - Employment abandoned
- Supervisor's behaviour factor in applicant leaving - However, main
reason was pay - As no breach of contract regarding pay, no constructive
dismissal - UNJUSTIFIED DISADVANTAGE - Supervisor's behaviour
disadvantaged applicant - Part of reason subsequently lost job - Applicant
felt unsafe and bad about whole working experience, serious matter for young
worker trying to make ends meet for family while attending school -
Remedies - Were it not for contractual abandonment provision would have
reinstated applicant - Should respondent offer reinstatement would seem
appropriate no remedy for disadvantage should apply in addition, especially as
respondent paid wages until investigation meeting - Recommendation
respondent review staff supervision policies and training - Length of service 11
weeks - Packer
Result: Application dismissed (Unjustified dismissal) ; Application granted (Unjustified disadvantage) ; Compensation for humiliation etc ($4,000) ; Recommendation ; Costs reserved
Whitehouse v Moorhouse Construction Ltd
28 Jul 2006, P Montgomery, CA 110/06, (6 pages)
UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Poor
performance - Employment agreement unsigned but recognised by respondent as
governing relationship - Applicant issued written warnings regarding performance
and requested to attend meeting - At start of meeting told would not be
dismissed - Dismissed at meeting for refusing to carry out instructions and
follow protocols - Previous warnings taken into account - Applicant not advised
employment at risk, instead told position under "review" -
Authority strongly of view review required employer to put concerns on table,
invite and listen to response, and take time to consider response before
deciding course of action - Did not happen here - Not advised entitled to have
representative present - Significant as required by employment agreement -
Authority also firmly of view that had parties had legal representation at
meeting outcome would likely have been significantly different - Unjustifiably
disadvantaged by first warning and by being denied right to respond to it -
Procedure so flawed and lacking in natural justice that issue of contribution
negated - Meeting outcome not predetermined but resulted from Director's loss of
composure - Dismissal unjustified - Remedies - Applicant sought lost
remuneration from dismissal to date of investigation - Respondent argued could
not be expected to pay applicant who decided to enter own business and was
unable to draw on its proceeds for significant period - Length of service
23½ months - Construction
Manager
Result: Application granted ; Reimbursement of lost wages ($13,000) ; Arrears of holiday pay (6 percent of lost wages) ; Compensation for humiliation etc ($17,000) ; Arrears of wages (bonuses)(Quantum to be determined) ; Costs reserved
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