|
Previous Section | Table of Contents | Next Section
Cameron v Axo Shredders Ltd
20 Mar 2009, P R Stapp, WA 32/09, (12 pages)
UNJUSTIFIED DISADVANTAGE - Applicant employed by respondent to work in United Kingdom ("UK") - After entering UK applicant worked without work visa - Applicant deported back to New Zealand ("NZ") - Applicant claimed suffered unjustified disadvantage due to deportation and health and safety issues in UK - Dispute between parties as to whose responsibility it was to obtain work visa ("visa") - Employment agreement ("EA") made no provision for obtaining work visa - Authority found both parties to take responsibility for failure to obtain visa - Applicant worked and accepted pay when on visitor's visa and took no direct action to obtain visa - Respondent condoned situation by paying applicant and acting as if visa obtained - Authority found respondent's failure to ensure applicant had visa breach of good faith and mutual obligations under EA - Found applicant also had responsibility to ensure visa obtained - Found no deliberate misrepresentation by respondent - Applicant had many issues with workplace conditions in UK - Authority found applicant not established vehicle, accommodation, and work premises unsafe and unhealthy, and that respondent breached general health and safety obligations in EA - Respondent produced sufficient evidence met obligation of taking all practicable steps to provide safe and healthy work environment - PENALTY - Authority found respondent's breach of obligation to act in good faith did not warrant penalty - No deliberate or wilful misrepresentation by respondent over work arrangements - UNJUSTIFIED DISMISSAL- Applicant claimed took four days leave on return to NZ and later told by respondent not to return to work - Respondent claimed applicant requested indefinite leave of absence - Authority found applicant's employment ended when took leave of absence and accepted final pay - Authority agreed applicant accepted final pay as in financial difficulty - Found final payout not necessarily proof of dismissal initiated by employer - Found no actual resignation or dismissal as such - No written details of any dismissal from either party - ARREARS OF WAGES, HOLIDAY PAY AND OTHER MONIES - At investigation meeting parties agreed that applicant's claim for alleged underpayment of salary and respondent's counterclaim for recovery of monies be referred to independent auditor - Parties to be bound by outcome of audit - Any recovery and enforcement remained matter for Authority - Authority found applicant's claim for payment of commission not established as applicant unable to prove amount owed, if any - Applicant claimed unpaid leave on basis of hours worked in excess of contracted hours - Authority found under terms of employment agreement all hours fully compensated for by salary - Time in lieu provided for on call work or work on public holidays - Insufficient evidence provided of hours worked or statutory holidays involved - Claim dismissed - Applicant unable to show how respondent's holiday pay records incorrect - Application for unpaid holiday pay dismissed - No contractual basis for applicant to claim replacement of clothing and tools - Claim dismissed - Installation engineer
Result: Application dismissed ; Costs reserved
Cloete v Tyres Direct Ltd
12 Mar 2008, M Urlich, AA 89/08, (7 pages)
UNJUSTIFIED DISMISSAL - Applicant claimed unjustifiably dismissed - Respondent claimed employment terminated by operation of valid fixed term agreement ("FTA") - Authority found fixed term clause in employment agreement met requirements of s66 Employment Relations Act 2000 - Applicant requested meeting to discuss issues with salary payments and work vehicle - At meeting applicant advised fixed term clause invoked and employment terminated immediately due to respondent's financial situation - Applicant paid until expiry of fixed term - Authority found FTA could not end through notice at will - Authority found applicant's employment did not end by operation of fixed term agreement as fixed term not ended - Found applicant made redundant - Authority satisfied genuine redundancy - However, respondent failed to discuss redundancy proposal with applicant and allow opportunity for comment - Applicant not treated fairly and reasonably - Dismissal unjustified - UNJUSTIFIED DISADVANTAGE - Applicant claimed incurred bank fees as result of late payment of salary on two occasions - Authority found bank records showed salary paid on specified date each month - Authority found link between bank fees and salary payment not made out - Applicant claimed suffered disadvantage when company vehicle issued with exchanged for another - Parties disputed number of times vehicle exchanges occurred - Strongest element of applicant's claim, if could be made out, that respondent failed to discuss exchange and attempt to accommodate applicant's concerns - However, claim not specific enough for Authority to make any findings - No unjustified disadvantage - REMEDIES - No contributory conduct - Applicant's claim for lost wages could not succeed as received all monies owed under valid FTA - Dismissal placed financial and emotional stress on applicant and applicant's family - $3,000 compensation appropriate - COUNTERCLAIM - Recovery of monies - Respondent sought repayment of alleged salary advances - Applicant denied any salary advances made - Respondent provided no evidence to support claim - Respondent also sought reimbursement of costs to repair company vehicle applicant damaged - Applicant admitted damaged vehicle - When damage reported at time respondent took no action Authority found respondent had no grounds to revive issue post dismissal - Claims dismissed - COSTS - Applicant to be reimbursed filing fee - Senior Sales Consultant
Result: Application granted (Unjustified dismissal) ; Compensation for humiliation etc ($3,000) ; Application dismissed (Unjustified disadvantage) ; Application dismissed (Counterclaim) ; Disbursements in favour of applicant ($70)
Corlett v Transfield Services (New Zealand) Ltd
23 Feb 2009, A Dumbleton, AA 59/09, (13 pages)
UNJUSTIFIED DISADVANTAGE - Applicant claimed final warning unjustified - Applicant's role involved delivering waste to transfer plant operated by client of respondent - Client complained to respondent of applicant's conduct on two occasions - Client banned applicant from plant - Client alleged applicant swore and refused to follow instructions - Respondent held disciplinary meeting with applicant to discuss complaint and ban - Applicant advised to bring support person and warned dismissal possibility - Respondent rejected applicant's explanation for behaviour - Respondent concluded serious misconduct warranting final warning - Authority found conduct towards client serious and damaged respondent's reputation - Found respondent reached decision to issue final warning after thorough enquiries, including asking applicant's version and discussing complaint with client - Found respondent reasonably concluded conduct amounted to serious misconduct - No unjustified disadvantage - UNJUSTIFIED DISMISSAL - Serious misconduct - Authority accepted respondent's evidence that warned applicant breaching ban could result in all respondent's employees banned from plant and applicant's dismissal - Respondent made alternative arrangements so applicant could continue work without going to plant - One week after disciplinary meeting, applicant went to plant - Applicant drove respondent's vehicle and wore work uniform - Client complained to respondent - Applicant called to second disciplinary meeting - Respondent denied applicant's third request for rescheduling of meeting, having granted prior two requests - Applicant's union representatives present at disciplinary meeting - Applicant telephoned to explain was not coming to meeting for family reasons - Respondent proceeded without applicant - Respondent concluded applicant disregarded respondent's and client's instructions only one week after final warning issued, thereby destroying trust and confidence - Respondent concluded actions serious misconduct and terminated employment - Authority found strongest challenge to justification of dismissal was fact meeting proceeded without applicant - Found applicant had indicated would attend meeting - Found representatives did not protest to meeting continuing without applicant - Representatives argued that at time thought respondent already decided to dismiss anyway - Authority found union representatives put forward no basis for conclusion of predetermination - Found respondent wary of whether applicant had genuine reasons for not being present, as diversionary tactics previously used - Authority found fair and reasonable for respondent to proceed with meeting - Found was applicant's decision not to attend meeting - Found even without applicant's presence at meeting, was open to respondent to find applicant had deliberately disobeyed lawful and reasonable instructions and final warning - No justification for applicant that was trying to clear name because applicant aware that involved breaching ban and disobeying instructions - Actions constituted serious misconduct under house rules - No unjustified dismissal - Authority noted if had found applicant unjustifiably dismissed, would likely have found substantive if not total contributory conduct - Horticulturalist
Result: Applications dismissed ; Costs reserved
Lee v Minor Developments Ltd t/a Before Six Early Education Childhood Centre
14 Feb 2008, D King, AA 46/08, (10 pages)
UNJUSTIFIED DISMISSAL - Redundancy - Respondent's manager ("A") argued offered applicant casual employment with respondent - A argued provided applicant with standard casual employment agreement ("EA") - Applicant claimed available to work during week except Friday and weekends - A claimed applicant wanted husband to read EA before signed - Applicant sought letter from A confirming hours of work - A made multiple requests for applicant to return signed EA - Applicant later claimed never received EA - Authority found applicant given casual EA as contended by A - A issued all staff except applicant with new permanent EAs - Applicant provided with casual EA and not new permanent EA because only unsigned casual employee - Applicant did not raise any issues about new EA with A - Applicant's new EA stated employment "as required" - Downturn in work required respondent to reduce staff hours - Applicant's hours to be reduced due to casual status and lack of training - Applicant had meeting with A where told would work 3 days a week and additional hours if enrolments increased - Applicant claimed told applicant felt marginalised because believed EA permanent - First time permanency of employment raised with respondent - A argued applicant asked for letter stating in casual employment and never asked to be permanent - A told applicant fully qualified teacher would be employed to assist A and applicant not required over summer period - Applicant told would be contacted again when work increased - Applicant told A not interested in further casual work and going home to look after children - Authority rejected applicants claim fact raised issues about respondent with Ministry of Education reason for redundancy - Authority also rejected applicant's assertion that made into respondent's cleaner - Applicant claimed offer of training significant factor in accepting employment with respondent - A denied any commitment by respondent to provide education - Authority found A did not mislead applicant as to Ministry of Education's requirements - Authority concluded applicant did not express early interest in obtaining a qualification but interest expressed at later date - Authority satisfied A did not make promises to applicant regarding funding for training - Authority found applicant's employment not irregular as anticipated by unsigned EAs - Authority concluded respondent intended to offer casual work but in practice work permanent part time - Found substantive justification for redundancy - Authority did not accept applicant's argument that marginalised - Manner in which dismissal effected unfair - No opportunity to be represented and decision predetermined - Dismissal unjustified - UNJUSTIFIED DISADVANTAGE - Authority found reduction in hours disadvantaged applicant - No breaches of good faith - Remedies - Authority found being redundancy, no issue of contributory conduct - Found any lost remuneration due to redundancy not personal grievance - Authority found given distress suffered by applicant $2000 compensation appropriate - Reliever caregiver
Result: Application granted (Dismissal)(Disadvantage) ; Compensation for humilitation etc ($2000) ; Costs reserved
Pollock v MacDonald (Statutory Manager, Aranui High School)
14 Feb 2008, H Doyle, CA 12/08, (23 pages)
UNJUSTIFIED DISADVANTAGE - Applicant claimed respondent failed to consider application for medical retirement - Respondent claimed applicant never formally applied for retirement, alternatively, argued did not meet requirements of Collective Employment Agreement ("CEA") - Applicant claimed parties agreed to full and final settlement, however, applicant able to bring claim regarding rejection of application for retirement - Authority found evidence supported conclusion that was application for retirement under CEA - Authority satisfied applicant applied for retirement notwithstanding made part of settlement proposal - Respondent not satisfied with medical certificate provided with application - Authority found time restraint not justifiable reason for failing to obtain second certificate or communicate concerns to applicant - Applicant advised retirement would not be funded by Ministry of Education - Found retirement rejected by Ministry official who concluded application irregular on basis of unsubstantiated information provided by respondent - Source of funding irrelevant consideration by respondent but significant factor in applicant's decision making - Authority found respondent breached CEA by rejecting application without considering whether accorded with CEA - Unjustified disadvantage - REMEDIES - Medical opinion supported conclusion applicant lost real chance of retirement - Authority assessed applicant's chance of retirement and receiving benefit at 50 percent - Retirement benefit under CEA different to compensatory payment under Employment Relations Act 2000 - Applicant entitled to 50 percent of retirement benefit, less two months notice received under terms of settlement - $5000 compensation for humiliation appropriate - PENALTY - Applicant claimed respondent breached confidentiality provisions of settlement agreement by commenting on payment of notice period - Authority not prepared to award penalty in circumstances where reporter saw respondent after applicant disclosed resignation - Further compliance order unnecessary where part of settlement disclosed in determination details and prohibition of publication attached to other parts - Principal
Result: Application granted ; Compensation ($5,000) ; Compensation (loss of chance)($51,668.50) ; Costs reserved
Potter v Australian Consolidated Press NZ Ltd
11 Mar 2008, V Campbell, AA 82/08, (8 pages)
UNJUSTIFIED DISADVANTAGE - Applicant claimed unjustifiably disadvantaged by transfer of clients from applicant to co-worker, affecting commission - Also claimed unjustifiably disadvantaged by disciplinary process regarding performance - Applicant claimed respondent's Corporate Sales Manager ("S") misled applicant by advising received client complaints when in fact no complaints made - Respondent argued business strategy changed commission structure - Authority found clients transferred due to adjustment of client lists - Found this discussed with applicant - Found removal of clients from commission paid employee was action which could lead to disadvantage - However, found removal of clients to allow applicant opportunity to expand business in other areas did not lead to disadvantage - Applicant conceded income increased despite commission restructure - Authority found no unjustified disadvantage regarding reallocation of clients - Authority found S had genuine concerns about applicant's behaviour - Found when informal approaches did not bring about changes, S implemented formal disciplinary process - Authority did not accept S deceptive or misleading when raised customer complaints with applicant - Found applicant only cast doubt on one of four alleged customer complaints - Found no further disciplinary action taken as result of disciplinary interview with applicant - No unjustified disadvantage - UNJUSTIFIED DISMISSAL - Constructive dismissal - Five days after respondent advised applicant that no further disciplinary action to be taken, applicant resigned - On receipt of resignation, respondent replied to applicant, attempting to arrange meeting - Authority satisfied respondent did not follow course of conduct with intention of coercing applicant to resign - Found S addressed performance issues in fair and reasonable manner - Found equally no evidence to support argument that respondent breached duty to such degree that applicant had no option but to resign - Found applicant reluctant to follow expected processes and reacted negatively when S raised this - No constructive dismissal - ARREARS OF WAGES - Arrears of commission - Respondent argued applicant's calculations of commission payments included advertisements placed by Australian agents, not applicant - Authority found applicant not entitled to commissions for bookings made by Australian bookers, as specified in updated clause of employment agreement - Found no arrears of commission owing - Found respondent significantly overpaid applicant - Respondent advised would not require applicant repay overpayment - Commercial advertising executive
Result: Applications dismissed ; Costs reserved
Roberts v Converting Technology (NZ) Ltd
3 Mar 2008, A Dumbleton, AA 70/08, (9 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Respondent dismissed applicant for treating bonus payment as tax free, misuse of company taxi card, failure to pay creditors, and failure to manage another employees use of company petrol card - Applicant had long association with respondent's owner ("R") - Prior to dismissal parties had amicable relationship - Authority noted employment relationship operated on basis of loose and unwritten arrangements which suited both parties - Authority found R partly responsible for relaxed culture in workplace and applicant's conduct considered in that context - No dispute bonus part of applicant's income and taxable - R argued after 1998 stopped bonus paid net of tax and after 2000 made clear to applicant received bonus after tax - R warned by professional accountants to end tax free bonus payments - Authority found applicant knew from knowledge of business operations tax not being paid and that arrangement of passing off payments as expenses not legitimate even with R's approval - Authority satisfied R fairly concluded applicant had no basis for honestly believing 1998 arrangement approved for use in later years - Found reasonable for respondent to regard applicant's actions as serious misconduct - Found applicant paid herself more remuneration than authorised and as manager failed to ensure tax due properly accounted for in books - Authority also found applicant's delay in paying creditors negligent - However, Authority noted R to share responsibility as allowed applicant considerable discretion to make payments without sufficient control and direction - Found R reasonably concluded applicant failed to supervise another employees use of company petrol card - Authority also found no excuse for applicant using company taxi card for personal use - Authority concluded culture of casual arrangements and lack of attention to financial accountability reason for current circumstances - Authority found trust and confidence required to maintain employment relationship lost on both sides - Dismissal justified - UNJUSTIFIED DISADVANTAGE - Applicant claimed suspension unjustified - Authority found failure to consult with applicant prior to suspension unjustified - However, fault for situation giving rise to situation so serious applicant not entitled to remedies - Office manager
Previous Section | Table of Contents | Next Section
|
