Personal grievance - Dismissal - Employment Relations Act 2000
Barrett v Horizon2 Ltd
19 Nov 2007, D King, AA 361/07, (16 pages)
UNJUSTIFIED DISMISSAL - UNJUSTIFIED DISADVANTAGE - Applicant alleged not properly consulted about restructuring and new position a demotion - Although claimed constructive dismissal applicant actually dismissed - Original role involved responsibility for research and staff management - Parties agreed applicant would trial working reduced hours - Respondent proposed restructuring and applicant’s new role retained only research duties - Respondent claimed reflected reality prior to restructure as management duties decreased over time and removed while trialling reduced hours - Applicant considered new role significant change and proposed new terms or contracting relationship - Increased cost unacceptable to respondent - Around same time, trial period for reduced hours ended - Respondent sought to discuss trial but applicant refused, did not respond to communications or attend work - Disciplinary meeting held but applicant refused to return to work and raised personal grievance - Dismissed for failure to follow instruction to return to work or engage with respondent - No evidence respondent wanted applicant to resign - Communications from respondent did contain options and ultimatums, but not illegitimate in circumstances - New position not a demotion and no significant change of focus - Position not altered to extent it ceased to exist - No redundancy - However, job description had altered and respondent sought agreement to variation - Applicant could continue in varied position or resign - Trial of reduced hours had expired - Respondent able to direct applicant to return to altered position on full time basis -- Reasonable and lawful instruction - Dismissal justified - No disadvantage - Scientist
Result:
Application dismissed ; Costs reserved
Brockett v Transpacific Technical Services (NZ) Ltd
4 Dec 2007, R Arthur, AA 382/07, (10 pages)
UNJUSTIFIED DISMISSAL - Respondent denied applicant dismissed - Claimed applicant casual employee employed for project that had been completed - Word “casual” in employment agreement did not describe true nature of arrangement - Employment fixed term, linked to completion of new plant and applicant’s summer holidays - Reasons for employment ending not in writing - Permanent employee - In addition, project not fully complete - Alongside project work, applicant also had regular part-time job in respondent’s laboratory - Applicant’s father also employed by respondent and responsible for supervising applicant’s work on plant - Father absent on extended sick leave and gave applicant list of duties to finish - Respondent unaware applicant remained at work - Submitted unsafe to allow applicant to work unsupervised and no other work available - Applicant told project complete and services no longer required - No discussion about work applicant doing or capable of doing - Although respondent aware of potential problem with employment did not raise issue in timely manner - Dismissal unjustified - Applicant’s allegation dismissed because father raised personal grievance not addressed, but manager’s evidence unaware of grievance at time accepted
Result:
Application granted ; Reimbursement of lost wages ($2,640) ; Compensation for humiliation etc ($3,000) ; Costs reserved
Brown v Phoenix Italia Ltd
12 Nov 2008, R A Monaghan, AA 388/08, (6 pages)
UNJUSTIFIED DISMISSAL - Applicant claimed unjustifiably dismissed - Respondent denied applicant dismissed - Both parties relied on proper interpretation of conversation that occurred immediately before applicant’s employment ended - Applicant employed as salesperson but as store recently opened was expected to assist with moving stock - Applicant injured while moving stock - Applicant worked very limited hours over following weeks - Parties had meeting where reached consensus no alternative duties available - Respondent concerned premature return to work could cause applicant further harm and wanted medical clearance before allowing applicant to return - Applicant returned to work without providing evidence of medical clearance - Respondent’s general manager (“P”) claimed told applicant to chose whether to remain in employment or not depending on whether applicant believed able to carry out duties - Trial period in employment agreement was raised during conversation - Applicant came to conclusion would either be dismissed that day or at end of trial period - Applicant decided to leave - Authority found P unwise to have raised possibility of termination without first emphasising importance of applicant obtaining medical clearance - However, Authority did not believe P went so far as to say applicant’s employment would not continue - Authority found P did not give applicant choice between leaving that day or at end of trial period - Found P indicated that if employment continued, would be review at end of trial period - No reason for applicant to believe employment would end at end of trial period - Premature of applicant to assume any further problems would not be dealt with appropriately - Likely parties spoke at cross purposes when discussed applicant’s choices - Authority not persuaded applicant dismissed - Salesperson
Result:
Application dismissed ; Costs reserved
Busing v Autoterminal New Zealand Ltd
17 Dec 2007, V Campbell, AA 395/07, (10 pages)
UNJUSTIFIED DISMISSAL - Constructive dismissal - Applicant offered promotion to salesperson - Alleged accepted on basis could return to “old job” - Respondent agreed could return to yard but claimed did not promise could return as manager - After six weeks asked to move back to yard - Disagreement over whether returned to yard manager role or general position - No new yard manager appointed, but respondent had reallocated duties - No current vacancy in yard but applicant accommodated - Applicant not returned as manager, but he believed held position of authority - Led to difficulty with other employee - When co-worker proffered resignation, respondent offered him option of becoming yard manager - Respondent intended to discuss situation with applicant first - Applicant believed being demoted and went on sick leave - Did not return and raised constructive dismissal - Co-worker declined offer and resigned - Applicant aware of this but did not contact respondent - Respondent to take some responsibility for misunderstanding as no new employment agreement provided - Breach of duty, however, not so serious that reasonably foreseeable applicant would resign - Respondent attempted to contact applicant to discuss situation but he failed to return calls - Would have provided opportunity to resolve issues - No constructive dismissal - GOOD FAITH - Evidence did not support allegation respondent breached obligation to act in good faith during events leading up to resignation - Car yard worker
Result:
Application dismissed ; Costs reserved
Causer v Gleeson & Cox Transport
16 Sep 2008, M Urlich, AA 325/08, (7 pages)
UNJUSTIFIED DISMISSAL – Constructive dismissal – Consistent with agreed probationary period, manager reviewed applicant’s performance in third week of employment – Review sought improvement – Applicant complained to senior managers that bullied and treated unfairly by manager - Following day applicant verbally resigned – Resignation letter stated reasons being workplace unpleasant and attempts to rectify situation had failed – Respondent argued manager critical but not abusive – Authority found close monitoring of applicant’s work during probationary period not breach of duty – Found manager had reasonable basis to raise issues with applicant in performance review – Manager gruff and to the point, but manner not unfair or derogatory and in circumstances did not amount to breach of duty – Found strongest aspect of claim was that confidential complaint to senior managers unfairly disclosed to manager – However, no clear evidence that confidence was breached or that applicant aware of breach – Found no breach of duty – If wrong, Authority also not satisfied that any breach so serious as to give rise to substantial risk of resignation – Applicant raised concerns for first time at meeting with senior managers - Found applicant did not say was considering resigning, and did not wait to receive response before resignation – No unjustified dismissal - Yard supervisor
Result:
Application dismissed ; Costs reserved
Downey v TEG Enterprises Ltd
6 Nov 2008, V Campbell, AA 381/08, (7 pages)
UNJUSTIFIED DISMISSAL - Applicant claimed unjustifiably dismissed from permanent part-time position - Respondent claimed applicant casual employee and denied dismissed applicant - First issue whether applicant casual or permanent employee - Applicant worked regular rostered hours but paid in cash at end of each day - Authority found applicant employed with intention of being permanent employee and on permanent roster - No evidence applicant free to accept or reject work - Applicant permanent employee - Second issue whether applicant unjustifiably dismissed - Respondent received number of complaints about service while applicant on sick leave - Believed cause of complaints was applicant’s absence - Respondent advised by two other employees that applicant’s absences due to other employment commitments - On return to work applicant advised no longer required as unreliable - Authority found applicant not told of other employees’ comments and given no opportunity to respond to reasons for dismissal - No full and fair investigation and actions not those of fair and reasonable employer - Dismissal unjustified - Remedies - No proper wage and time records kept - Authority preferred applicant’s evidence of days worked - Authority did not accept respondent’s calculation of applicant’s pay - Authority concluded applicant underpaid for each hour worked - Applicant to be paid arrears of wages - Authority satisfied applicant attempted to mitigate loss - 12 weeks lost remuneration awarded - Applicant awarded $2,000 compensation for hurt and humiliation caused by manner of dismissal - Restaurant employee
Result:
Application granted ; Arrears of wages ($30.70) ; Reimbursement of lost wages ($3,280.50) ; Compensation for humiliation etc ($2,000) ; Costs reserved
Ford v Gold Seal International Ltd
3 Dec 2007, D King, AA 381/07, (8 pages)
UNJUSTIFIED DISMISSAL - UNJUSTIFIED DISADVANTAGE - Constructive dismissal - Applicant advised respondent of history of back pain before employed - Remuneration package included company vehicle - Driving car aggravated back pain and asked that vehicle be changed - Occupational therapist concluded vehicle aggravated condition but decision to change car was respondent’s - Respondent contacted Labour Department - Advised situation was health and safety issue and applicant should provide medical certificate - Parties continued meeting while applicant on sick leave - Attempted to find other work for applicant and later negotiated exit package - Respondent believed termination mutual but applicant considered herself dismissed - Respondent attempted to clarify situation and advised applicant position remained open - Applicant argued respondent did not take all practicable steps to prevent harm and should have explored changing vehicle more fully - Insufficient evidence of causation to decide issue - Letter outlining exit package not a dismissal - Discussion about alternative position merely proposal - However, despite respondent’s assertions she remained employed, Authority of view employment terminated as applicant alleged constructive dismissal and considered employment at end - No dismissal - ARREARS OF WAGES AND HOLIDAY PAY - Arrears due and owing - Interest 10.8 percent - Sales manager
Result:
Application granted (Arrears) ; Arrears of wages and holiday pay (Quantum to be determined) ; Interest (10.8%) ; Application dismissed (Personal grievance) ; Costs reserved
Gavin v Smith Developments
29 Nov 2007, A Dumbleton, CA 145/07, (15 pages)
UNJUSTIFIED DISMISSAL - Conflict of interest - Duty of loyalty - Applicant dismissed following investigation into her role with charitable trust and actions in passing information to trust during employment - Respondent concerned about conflicts of interest - Applicant had disclosed role as trustee when hired but extent to which she informed respondent of role disputed - On bare wording of trust deed, applicant in breach of employment agreement from time entered employment as both trust and respondent involved in same work - Dismissed when forwarded email received at work to another trustee without informing respondent of opportunity - Applicant submitted respondent waived express provisions of employment agreement in relation to trust as aware of interest - Respondent made it clear during interviews that highly important to it to discover potential for conflicts of interest - Respondent’s evidence not made fully aware of extent trust involved, or could be involved , in competition preferred - Sending email aggravated existing breach - Conclusion applicant’s actions in conflict with employment obligations reasonable in circumstances - Actions so seriously undermined trust and confidence necessary for employment relationship that respondent given grounds for dismissal - Dismissal justified - Property Manager
Result:
Application dismissed ; Costs reserved
Herdman v Autoglas-Stieger Ltd
19 Mar 2008, H Doyle, CA 28/08, (13 pages)
UNJUSTIFIED DISMISSAL - UNJUSTIFIED DISADVANTAGE - Applicant’s unjustified disadvantage and dismissal claims based on same facts - Authority did not treat them as separate claims with respect to remedies - Respondent claimed applicant resigned or alternatively dismissal justified by applicant’s refusal to carry out lawful instruction and other actions - Applicant damaged client's car - Respondent alleged applicant had caused minor damage to clients’ cars on previous occasions - Respondent claimed told applicant would have to start paying for damage if incidents continued - Applicant disputed discussion took place - Respondent deducted money from applicant's wages to pay for damage - During discussion about deductions and applicant's potential liability for future incidents respondent received callout - Respondent requested applicant go to callout - Applicant wished to resolve wage deduction issue first - Parties got into an argument and as applicant left office, slammed door and broke glass - Applicant allegedly told co-worker had quit, and co-worker informed respondent - Parties in dispute about events after meeting - Applicant believed dismissed and sought outstanding wages - Respondent believed applicant resigned - Authority found applicant did not intend to resign and respondent had not intended to dismiss applicant during argument - Found was heated situation where not safe for respondent to rely on applicant’s words or actions that resigned - Not sufficient for respondent to rely on second hand information from co-worker - Respondent should have made own inquiries and sought to clarify state of relationship - By maintaining applicant had resigned respondent prevented continuation of relationship, which amounted to dismissal - Respondent’s argument dismissal would have been justified rejected - Authority not persuaded dismissal would have been inevitable - Dismissal unjustified - Remedies - Contributory conduct 25 percent - Applicant’s behaviour not constructive - Authority found only loss of wages attributable to respondent were from time of dismissal until applicant received sickness benefit - Quantum of lost wages to be determined by parties - To assist parties Authority determined applicant's gross weekly wage - Applicant diagnosed with depression, humiliated by experience, withdrew socially and experienced financial hardship - Award of $6,000 compensation appropriate, reduced to $4,500 for contribution - PENALTY - No written employment agreement - Subsequent problems could have been lessened had agreement been provided - Moderate penalty appropriate - Penalty of $200 awarded, payable to Crown - Windscreen repairer
Result:
Application granted ; Reimbursement of lost wages (Quantum to be determined) ; Compensation for humiliation etc ($6,000 reduced to $4,500) ; Penalty ($200)(Payable to Crown) ; Costs reserved
Hunt v Uniquely Kiwi Ltd
13 Nov 2007, J Scott, AA 353/07, (13 pages)
UNJUSTIFIED DISMISSAL - Whether dismissed or resigned - Applicant took over respondent’s accounts after original employee left - Had difficulties with work - Ex-employee returned to train applicant - Respondent claimed applicant unhappy in role and when ex-employee indicated she could remain and help out, applicant left quickly and happily - Applicant disputed this, claimed surprised when told ex-employee would be taking her position and left as considered herself dismissed - Submitted wrote to respondent alleging unjustified dismissal but respondent did not receive communication - Credibility finding in favour of respondent - Applicant told respondent on more than one occasion that if ex-employee came back she could have her job back - Applicant left very quickly and both parties shocked by rapidity of events - In context of repeated statements ex-employee could have her job back and applicant’s demeanour at time, understandable respondent took her leaving as voluntary resignation - On balance of probabilities, no dismissal - In circumstances, penalty for failure to provide written agreement not warranted, but respondent to be mindful of issue in future
Result:
Application dismissed ; Costs reserved
Johnstone v The Chief Executive in respect of the Inland Revenue Department
30 Nov 2007, P R Stapp, WA 158/07, (19 pages)
UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Applicant requested formal review of remuneration - Review recommended performance assessment, which involved supervision of client sessions - Interim performance reviews critical of applicant - Applicant raised personal grievance alleging respondent failed to meet obligations to resolve remuneration complaint - Complained supervision humiliating and placing her under unreasonable pressure - Applicant taped client sessions to show supervisor’s behaviour - Respondent concerned about client confidentiality and issued written warning - Although applicant complained about warning no personal grievance raised in time - Further supervised sessions occurred and respondent remained critical of performance - Applicant complained further of impact on health but turned down medical retirement - Final performance rating less than fully competent - Applicant given other work - Failed to follow instructions in relation to new duties - Applicant refused to attend disciplinary meeting - Respondent tentatively concluded dismissal warranted and applicant invited to respond - Applicant left work and advised considered herself constructively dismissed - On same day, respondent dismissed her - Applicant alleged put under undue pressure and breach of health and safety - In each instance, open to fair and reasonable employer to engage with applicant over performance - Acted prudently once health concerns raised but applicant’s health claim not sufficiently substantiated - No breach of obligations - Respondent did not fail to resolve remuneration complaint and took all practicable steps to complete performance management process in accordance with recommendations of review - Applicant not disadvantaged by any unjustified actions by respondent - Allegations raised by applicant not sufficient to make it foreseeable she would resign - Although subject to five investigation each matter taken up separately - Applicant resigned - No dismissal - Maori Community Officer
Result:
Application dismissed ; Costs reserved
Kolovos v NZ Steel Ltd
22 Aug 2007, L Robinson, AA 257/07, (15 pages)
UNJUSTIFIED DISMISSAL - Respondent claimed applicant’s temporary employment ended and no dismissal - Applicant initially accepted temporary employment - Term extended numerous times - After fourth extension received letter confirming employment would end with expiry of fixed term - Respondent sought union agreement to extend employment but union considered permanent employee required and did not consent to extension of temporary contract - HR would not consent to applicant being offered permanent position and another temporary employee engaged to do work - Genuine reason for fixed term, however applicant not told of why employment would end on various end dates given in fixed term agreements - Invalid fixed term - Alternatively, applicant deemed permanent employee under collective employment agreement as employed for more than 52 weeks - Permanent employee - Applicant dismissed and dismissal unjustified - Remedies - Applicant sought reinstatement and no impediments to his return - Storeman
Result:
Application granted ; Reimbursement of lost wages (Quantum to be determined) ; Compensation for humiliation etc ($5,000) ; Reinstatement ordered ; Costs reserved
McKee v Corringham Investments Ltd
11 Dec 2007, D Asher, WA 165/07, (10 pages)
UNJUSTIFIED DISMISSAL - Applicant alleged abruptly dismissed - Reasons for dismissal unclear - Respondent claimed applicant received numerous warnings for performance and conduct - Argued applicant not dismissed but merely let go for the day - Claimed attempted to contact her when she stopped attending work and assumed she had resigned - Applicant’s evidence preferred - Respondent’s conduct throughout applicant’s employment less than satisfactory - No written employment agreement - Gave applicant no answer when she asked if dismissed - Applicant could reasonably take silence as confirmation of sending away - Respondent’s claims attempted to contact applicant not credible - Damage caused by respondent’s conduct compounded by its response to applicant’s correspondence - Not only did it impliedly confirm dismissal but also clumsily warned applicant against pursuing matter - Respondent also made no effort to respond to invitation to mediation - Deliberate pattern of evasive behaviour - No substantive justification for dismissal and absence of fair process - Dismissal unjustified
Result:
Application granted ; Reimbursement of lost wages ($6,240) ; Compensation for humiliation etc ($8,000) ; Costs reserved
Melrose v Weka Group Ltd t/a The Vulcan
25 Nov 2008, D King, AA 403/08, (4 pages)
UNJUSTIFIED DISMISSAL – UNJUSTIFIED DISADVANTAGE – Applicant claimed discriminated against by reason of pregnancy – No appearance by respondent – After seven months employment with respondent, applicant discovered was pregnant – Applicant mentioned pregnancy to respondent – Applicant told demoted to Assistant General Manager and new employee to be General Manager – Respondent told applicant that was underpaid for one shift as took time off during prior shift to visit midwife – Applicant given verbal warning for incorrectly filling in timesheet – Applicant protested warning, arguing had not filled in time sheet as day was statutory holiday – Respondent called meeting with applicant, refusing to say what meeting about – Applicant’s partner attended – At start of meeting, respondent stated meeting had two possible outcomes: resign or be dismissed - Applicant shown video footage of applicant leaving workplace before time on timesheet – Respondent made further allegations of incorrect entries, without providing details or opportunity to view other footage – Applicant refused to resign – Applicant received dismissal letter – Authority found no opportunity to respond to allegations and not provided with all relevant information – Authority satisfied dismissal was because of pregnancy – Applicant not consulted regarding demotion – Dismissal and disadvantage unjustified – Remedies – Applicant entitled to one month’s wages for notice period stipulated in employment agreement – Applicant entitled to reimbursement of lost wages until date maternity leave would have commenced – Global compensation for humiliation and distress appropriate – PARENTAL LEAVE – Applicant claimed compensation for loss of parental leave payment – Authority found parental leave payment not benefit that can be compensated under s123(1)(c)(ii) Employment Relations Act 2000 – COSTS – Authority satisfied $2,000 contribution to costs sought by applicant reasonable - $2,000 costs awarded – General Manager
Result:
Applications granted (dismissal and disadvantage) ; Reimbursement of lost wages (23 weeks)($20,788.66) ; One month’s wages in lieu of notice ($3,916.66) ; Compensation for humiliation etc ($9,000) ; Application dismissed (parental leave) ; Costs in favour of applicant ($2,000) ; Disbursements in favour of applicant ($70)(filing fee)
Nelio v New Zealand Institute of Fashion Technology Ltd
30 Oct 2008, R Arthur, AA 371/08, (8 pages)
UNJUSTIFIED DISMISSAL - Respondent cancelled applicant’s employment agreement claiming applicant misrepresented qualifications - Applicant denied misleading respondent and claimed unjustifiably dismissed - Applicant had number of Romanian qualifications including “Diploma of Tailor” from Romanian university - Shortly after applicant started, respondent began to have concerns about applicant’s level of experience and ability - Respondent’s Managing Director questioned applicant about content of “Diploma of Tailor” - Respondent then sent applicant letter requesting meeting to discuss whether qualification had been misrepresented and possible cancellation of employment - Meeting was first time respondent had seen “Diploma of Tailor” - No evidence respondent put to applicant skills and level of qualifications required before employed her - Found respondent could not rely on clause in employment agreement to require applicant to have explained qualification more thoroughly - Respondent should have more thoroughly considered alternatives to termination - Found applicant did not misrepresent qualifications - Rather respondent made assumptions and failed to ask relevant questions during interview process - Respondent did not act as a fair and reasonable employer – Dismissal unjustified - Remedies - Applicant failed to sufficiently mitigate loss - Award of two months lost wages appropriate - Dismissal damaged applicant’s confidence and caused embarrassment and emotional distress - Award of $5,000 compensation appropriate - COSTS - Both parties indicated any costs should be awarded using tariff based approach - On that basis respondent to pay applicant $2,000 as reasonable contribution to costs - Fashion Design Tutor
Result:
Application granted ; Reimbursement of lost wages (Two months) ; Compensation for humiliation etc ($5,000) ; Costs in favour of the applicant ($2,000) ; Disbursements in favour of the applicant ($70)(Filing fee)
Riddell v Mahuika-Forsyth & Anor
13 Nov 2007, H Doyle, CA 138/07, (10 pages)
UNJUSTIFIED DISMISSAL - Redundancy - No appearance by respondents - Respondents submitted applicant initially employed by them, but subsequently became partner in business - Applicant accepted management position and provided with accommodation, valued by Authority at $150 per week - Discussion between parties about applicant receiving portion of gross earnings - Applicant did not accept he became profit-sharing partner - Did not provide capital and had no say in how business run - Relationship did not change from one of employment - Applicant told business to be shut down and became concerned about receiving payment for work already performed as had not been receiving weekly wage - When applicant asked for pay respondent accused him of being drunk and a thief and told him to leave - Evidence did not support these allegations - Business did cease to operate, but any redundancy process inadequate and unfair - Dismissal unjustified - Arrears due and owing - COSTS - Length of investigation meeting not specified - Applicant and representative flew in from out of town as location of investigation meeting insisted on by respondent - Given unusual circumstances, airfares treated as expense claimable by applicant - Bar manager
Result:
Application granted ; Reimbursement of lost wages and benefits ($4,260)(notice) ; Compensation for humiliation etc ($10,000) ; Arrears of wages and holiday pay ($5,239.40) ; Costs in favour of applicant ($1,000) ; Disbursements ($732)(airfares)
Robertson v Chief Executive of the New Zealand Fire Service Commission
28 Oct 2008, H Doyle, CA 164/08, (26 pages)
UNJUSTIFIED DISADVANTAGE – Applicant claimed subjected to unjustified action causing disadvantage when respondent failed to remove applicant’s regional manager (“R”) as decision maker in relation to applicant’s employment issues and personal grievances – Applicant requested R be removed because of involvement in concerns about applicant’s financial management; content of telephone call between R and national president (“W”) of New Zealand Professional Firefighters Union; and way respondent handled complaints by or about applicant – Authority found R made no relevant decisions that were unfair on basis of bias and predetermination - R took steps acknowledging applicant’s concern about relationship, including mediation - Reasonable for R to continue to deal with applicant's employment issues – Authority also noted it is for employer to choose its representative at mediation, and employee cannot insist on another representative - Claim of unjustified disadvantage because R not removed from role of decision maker not made out – Authority found performance plan following audit into matters of financial concern was reasonable – Found process investigating bullying complaint in relation to emails was justified, and administration manager (“CW”) did not accuse applicant of dishonesty in emails – However, Authority found telephone call between R and W was unjustified action that caused applicant disadvantage – Discussed applicant’s health, particularly memory, and impact on management ability – R understood applicant intended confidentiality – Employer obliged to take care not to damage relationship of trust and confidence in such “off the record” conversations with union officials - Remedies – Applicant hurt and distressed when advised of call – No impact on applicant’s standing among union members at station – R intended call to be off record and go no further - No contributory conduct – $3,000 compensation appropriate - UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed respondent’s breaches of terms of applicant’s employment so serious that applicant’s resignation reasonably foreseeable to respondent – Applicant claimed suffered depressive illness caused by treatment by R and CW – Authority found no breach by respondent for failing to provide safe and healthy workplace and take reasonable and practicable steps to avoid applicant suffering psychological harm – Authority found no evidence to support applicant’s claim that believed would not be treated differently on return to work – Found error in statement in reply did not amount to breach, but was simply mistake – Found investigation into bullying complaint not unreasonable – Found no breach regarding provision to applicant of administrative support – No breach in relation to statement that applicant refused to enter into discussions with management on routine matters – Authority found applicant unwell when resigned - Found respondent acted as fair and reasonable employer in those circumstances by asking applicant to reconsider resignation and suggesting further mediation - Applicant considered before confirming resignation - Evidence fell short of establishing serious breach of contract that would make it reasonably foreseeable applicant would not be prepared to continue employment – No constructive dismissal – 38 years service - Chief fire officer
Result:
Application granted (disadvantage) ; Compensation for humiliation etc ($3,000) ; Application dismissed (dismissal) ; Costs reserved
Thomas v Walkinshaw & Anor
15 Oct 2008, R Arthur, AA 310A/08, (9 pages)
PRACTICE AND PROCEDURE – Identity of employer – First respondent sole shareholder and director of second respondent – First respondent argued employment relationship was between applicant and second respondent – No written employment agreement – Business invoices referred to “Bike 360,” not second respondent – Applicant did not receive payslips or pay cheques while employed so not aware second respondent identified on those – First respondent’s email address referred to second respondent, but did not state it was limited liability company – Applicant not aware “Bike 360” was trading name of second respondent – Found first respondent’s intention that second respondent was employer, and identity of second respondent, not communicated to applicant – Second respondent was undisclosed principal at time first respondent employed applicant – First respondent did not discharge onus to identify principal to applicant, so applicant entitled to pursue first respondent personally - UNJUSTIFIED DISMISSAL - Tension in employment relationship due to incidents relating to applicant’s absence from work and applicant not been paid – After heated discussion, first respondent told applicant to “finish up” as was no longer needed – Authority found communication broke down, but issues did not justify summary dismissal – First respondent argued agreed before employment began that if employment unsuccessful, parties would just shake hands and move on – Authority found arrangement could not preclude basic employment right to have problems addressed in good faith before either party took unilateral steps to terminate employment – Dismissal unjustified – Remedies – Shop closed four weeks after dismissal, so only four weeks lost wages appropriate – Compensation for humiliation and injury to feelings appropriate as applicant devastated by sudden dismissal and embarrassed when knowledge of dismissal from bike shop emerged in cycling circles – Ten percent contributory conduct appropriate due to applicant’s inadequate communication and provocative comments to other staff about pay – ARREARS OF WAGES – After mediation, applicant paid for 84 hours work – Applicant claimed owed 12 more hours wages – In absence of time and wage records, Authority accepted applicant entitled to further wages and holiday pay – Interest at nine percent from date of dismissal – COSTS – Applicant not entitled to costs for legal advice relating to preparation for and attendance at mediation – Applicant entitled to lodgement fee – Other costs reserved – Bike shop sales assistant
Result:
Application granted (dismissal) ; Reimbursement of lost wages ($2,754) ; Compensation for humiliation etc ($2,250) ; Arrears of wages and holiday pay ($220.32) ; Interest on arrears ($28.41) ; Disbursements in favour of applicant ($70)(filing fee) ; Costs reserved
Thomson v Metros Publishing Group Ltd
29 Sep 2008, J Crichton, CA 145/08, (8 pages)
UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed Managing Director (“L”) performed “character assassination” of applicant in regular annual performance meeting – At end of meeting, applicant told L that L had made it clear that applicant not wanted, then resigned – Applicant confirmed resignation by email, stating resignation was consequence of L having destroyed trust and confidence in relationship – Authority found behaviour prior to dismissal meeting did not assist in determining whether applicant was constructively dismissed, other than providing setting – Applicant described L as manipulative, dismissive and bullying of applicant during employment relationship – L conceded that saw applicant as leader in staff’s negativity towards L regarding L’s alleged treatment of co-worker who resigned (“F”) – Authority found no evidence that L or respondent failed in obligations to applicant up until meeting – Authority found L began meeting by raising problems other staff had with applicant, including “culture of gossip” and applicant’s behaviour relating to F’s resignation – L demanded details of applicant’s discussions with F about F’s circumstances – Applicant and F referred to L’s approach as aggressive – F witnessed meeting and was of opinion L should have terminated and rescheduled meeting due to applicant’s distress – Authority found on balance of probabilities that applicant’s resignation was direct consequence of hectoring and aggressive tone adopted by L in meeting – Found L did not attend meeting with dominant purpose of forcing applicant out of employment – However, L breached duty creating inevitable and foreseeable consequence of applicant’s resignation – Respondent obliged to treat applicant fairly and decently, irrespective of applicant’s shortcomings – Remedies – Applicant’s gossip and bad-mouthing of L contributed to situation – 30 percent contributory conduct – Applicant on sickness benefit for six months after employment ended – Applicant attributed ill health to respondent – No claim for lost wages as incapable of work – In particular unusual circumstances, Authority considered evidence of depression and loss of confidence in global compensation award – Advertising Area Manager
Result:
Application granted ; Compensation for humiliation etc ($6,000) ; Costs reserved
Wang v Bade Draper Solutions Ltd
17 Dec 2007, M Urlich, AA 396/07, (4 pages)
ARREARS OF WAGES AND HOLIDAY PAY - Whether employee or volunteer - Respondent alleged applicant agreed to work unpaid trial period - Applicant claimed agreed hourly rate and received assurances would be paid when pursued unpaid wages - Respondent’s contention parties entered voluntary arrangement inconsistent with purported purpose of arrangement, to assess applicant’s suitability to work for reward - Trial periods required to be in writing - No voluntary probationary period - At minimum, applicant person intending to work and entitled to be paid for work performed - Agreed rate less than minimum wage - Arrears due and owing - UNJUSTIFIED DISMISSAL - Respondent claimed applicant dismissed for poor performance but provided positive reference - Applicant alleged told could no longer be employed as owner’s son to work her hours - Applicant’s evidence accepted - Dismissal unjustified
Result:
Application granted ; Reimbursement of lost wages ($337.50)(Two weeks) ; Compensation for humiliation etc ($1,500) ; Arrears of wages ($894.50) ; Arrears of holiday pay ($71.55) ; Costs reserved
Wynne v The Order of St John Midland Regional Trust Board
25 Nov 2008, Y S Oldfield, AA 402/08, (8 pages)
UNJUSTIFIED DISADVANTAGE - SEXUAL HARASSMENT – Applicant and immediate manager (“husband”) married – Applicant claimed that when marriage falling apart, husband’s conduct towards her at work affected employment to disadvantage and that other conduct amounted to sexual harassment – Respondent argued that originally only raised concerns with husband – Argued that when raised concerns with respondent’s HR Manager (“W”), W decided not to take further steps as did not consider allegations such that could be described as sexual harassment or other serious misconduct – Applicant claimed husband gave applicant inappropriate workload and made inappropriate comments undermining confidence – Also claimed witnessed husband engaging in inappropriate behaviour in workplace with another female colleague, subjecting applicant to a form of sexual harassment - Applicant confronted husband about behaviour, saying could not continue to work with him – Husband replied transfer not possible – Applicant and husband began living apart – Applicant advised senior manager (“N”) that separating but did not raise issue of husband’s conduct – Applicant later gave N medical certificate stating unfit due to workplace stress – Applicant’s counsel raised disadvantage grievance raising workload and support concerns, but not sexual harassment – W and N held meeting with applicant - Applicant said receiving less help from husband than before, then raised issue of conduct applicant observed between husband and colleague – W and N concluded husband’s behaviour did not amount to serious misconduct – Concluded workload issues were minor and conduct observed between husband and colleague within bounds of what was acceptable in workplace – Authority found W’s assessment of situation justified – In order for husband’s conduct with colleague to amount to sexual harassment of applicant, must fall within s108(1)(b) Employment Relations Act 2000, being that applicant was subjected to unwelcome or offensive language, visual material or physical behaviour of sexual nature – Found colleagues talking, laughing and spending time together in front of third colleague not of sexual nature at all – One instance of intimate behaviour witnessed by applicant was not by itself enough to suggest that conduct unacceptable in workplace – Authority noted colleague applicant confided in was unaware of any inappropriate behaviour – No sexual harassment – Found no evidence that husband gave applicant less assistance than gave to staff generally – Found workload issues minor – Found applicant did not take request for transfer further when husband declined – No breach of duty arising from failure to consider request for transfer – No unjustified disadvantage – UNJUSTIFIED DISMISSAL – Applicant claimed senior management failed to address concerns in way that made it safe for applicant to return to work from period of sick leave, so applicant left with no option but to resign – Applicant stated found idea of going back to workplace amongst colleagues who witnessed events too distressing, particularly working with colleague who applicant suspected was then living with husband – Authority found issue for determination whether respondent constructively dismissed applicant by failing to ensure safe to return to workplace – Applicant told respondent no longer wanted transfer – Husband had been suspended pending investigation into unrelated matter – Although undecided, applicant knew husband unlikely to return to workplace in immediate future – Applicant told Authority that to make workplace safe for applicant, respondent should have dismissed husband and colleague who applicant believed to be living with husband – Authority found were limits to what respondent could do to assist in making applicant feel comfortable going back to work – Found applicant resigned because could not bear to work with woman applicant believed to be husband’s new partner, and remedying this outside respondent’s capabilities – Resignation did not arise as result of breach of duty by respondent – No unjustified dismissal – Ambulance Officer
Result:
Applications dismissed (disadvantage and dismissal) ; Costs reserved
