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Charles v Waitakere City Council and Anor
19 Nov 2007, R Arthur, AA 362/07, (21 pages)
UNJUSTIFIED DISADVANTAGE – First respondent (“WC”) contracted to provide dog control services to second respondent (“NSC”) – Applicant employed on fixed term to provide services to NSC – NSC expressed concern about applicant’s performance to WC several times - Allegations not put to applicant and she was unaware NSC considering invoking clause in contract to remove her from duties – Clause subsequently invoked and WC attempted to transfer applicant to duties at WC for remainder of fixed term – Applicant raised grievance and did not return to work – Applicant entitled to know, and have opportunity to comment on, allegations and possibility removal clause would be invoked – Also entitled to opportunity to improve work practices – WC breached trust and confidence, and statutory duty of good faith to be active and communicative – Also breached duty not to act in way likely to mislead or deceive when advised applicant of NSC’s demand and transfer – No contractual basis for transfer - Unjustified disadvantage – Remedies – Applicant remained employed on unpaid sick leave – Entitled to wages lost immediately following removal from NSC position – Could have expected to be stood down on full pay while consulted about alternative arrangements – Reasonable period four weeks as did not mitigate loss – Contributory conduct 25 percent - PENALTY – Applicant alleged NSC aided and abetted WC’s breach of employment agreement – Not open to Authority to consider NSC’s commercial decision to invoke removal clause – Whether contract between respondents structured and applied to avoid employee’s rights important question of policy within Authority’s role and powers in equity and conscience – Removal clauses inconsistent with employment statutory regime – No evidence removal clause operated by NSC in calculated way to help WC avoid obligations – No penalty – Dog control officer
Result: Application granted (Disadvantage) ; Reimbursement of lost wages (4 weeks reduced to 3) ; Compensation for humiliation etc ($10,000 reduced to $7,500) ; Application dismissed (Penalty) ; Costs reserved
Hollands v Jam Marketing Pty Ltd
31 Jul 2007, D King, AA 179A/07, (3 pages)
UNJUSTIFIED DISMISSAL - Poor performance - No appearance for respondent - No written employment agreement - Earlier determination found applicant an employee - Matter determined on applicant's uncontested evidece - Applicant employed to sell timeshare properties on salary plus commission basis - Within two months told was being let go because was “a round peg in a square hole” - Not given any indication employment at risk or opportunity to comment - Manner dismissal affected "brutal" - Decision predetermined - Dismissal unjustified - PENALTY - Respondent intended to provide employment agreement but failed to do so - Penalty appropriate - COSTS - Applicant entitled to costs - Applicant to forward details of expenditure incurred to Authority
Result: Application granted ; Reimbursement of lost wages ($5,000)(10 weeks) ; Compensation for humiliation etc ($8,000) ; Penalty ($3,000)(Payable to Crown)
Kessell v Harris Transport (1974) Ltd
6 Jun 2007, GJ Wood, WA 90/07, (7 pages)
UNJUSTIFIED DISMISSAL - UNJUSTIFIED DISADVANTAGE - Poor performance - Summary dismissal - Applicant responsible for scheduling transport jobs and organising staff - Received three written warnings for forgetfulness and mismanagement of jobs - Delay in issuing of third warning - Manager unaware applicant had diabetes - Often neglected to take medication, resulting in forgetfulness - Manager angry with applicant after day's work lost - Applicant called in sick by email next day - Manager sent email terminating employment due to "performance issues" - Respondent claimed in statement in reply dismissed applicant for serious misconduct - Evidence showed applicant clearly dismissed for poor performance - Basic tenets in Trotter v Telecom Corporation of New Zealand Ltd (cited below) not followed - Test of serious or repeated failure deliberateness - Manager acknowledged problem not any deliberate failure to follow instructions - Reasons for warnings raised cursorily if at all - No fair opportunity to answer respondent's concerns - Disciplinary meeting should have been held - Applicant may have disclosed condition and altered manager's perspective - Whole disciplinary and dismissal process fundamentally flawed given applicant had minimal involvement in it - Not given clear information what improvements required, how improvement would be measured or time frames to make them - Dismissal unjustified - Remedies - Applicant responsible for proper management of diabetic condition - Respondent not required to pay for results of applicant's illness on its business - Could have alleviated matters if had been informed of condition - Applicant responsible for many of manager's concerns - However, not responsible for gross breaches of fair and reasonable treatment - Contributory conduct 33.33 percent - PENALTY - Applicant claimed penalties for breach of contract and good faith - Penalties not to be added to remedies for unjustified dismissal in normal course of events - Justice of case met by lost wages and compensation awards - Operations Manager
Result: Application granted ; Reimbursement of lost wages ($9,750 reduced to $6,500) ; Compensation for humiliation etc ($12,000 reduced to $8,000) ; Costs reserved
Taurima v White Gloves Television Productions Ltd
27 Apr 2007, M Urlich, AA 126/07, (14 pages)
UNJUSTIFIED DISMISSAL - Applicant claimed on same day promised ongoing work, was dismissed when requested outstanding wages - Respondent claimed applicant employed on successive fixed term agreements based on funding it received to develop or produce television programmes - Claimed employment ended by expiry of fixed term or alternatively applicant resigned - Whether dismissed or resigned - Whether fixed term employment - Pay sheets showed applicant's work covered 12 distinct terms separated by periods where no work provided and she received no pay - Employed on series of fixed term agreements prior to amendment to s66 Employment Relations Act 2000 ("ERA") - Respondent claimed amendments not relevant because terms of fixed term agreed to prior to - "Key personnel form" was evidence a fixed term agreement entered into prior to date amendments came into effect - Section 66 obligations met - Amendments did not superimpose obligations on existing fixed term agreements - ARREARS OF WAGES - Applicant claimed respondent unlawfully deducted monies from amount should have received as production manager - Not unlawful deductions, rather applicant's employment agreement, as to timing of payments, varied without her consent - PENALTY - Applicant sought penalty for failure to provide written employment agreement -
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