Personal grievance - Dismissal - Misconduct - Employment Relations Act 2000
Barnes v Apex Transport Ltd
19 Dec 2007, R A Monaghan, AA 405/07, (8 pages)
UNJUSTIFIED DISMISSAL - Misconduct - Applicant had accident while driving - Asked to attend meeting - Alleged manager stated would be better if applicant resigned - Applicant left premises but did not want to resign - During later conversation applicant told fired - Respondent submitted applicant dismissed for damaging property - No evidence respondent investigated circumstances of accident or considered appropriateness of dismissal - Dismissal unjustified - Remedies - Applicant subsequently pled guilty to charge of careless driving arising from accident - Argued accident caused by fatigue for which he was not responsible - Circumstances did not excuse applicant entirely - Significant degree of contributory fault - Contributory conduct two thirds - ARREARS OF WAGES AND HOLIDAY PAY - Applicant not paid for final week due to failure to report to work and respondent’s belief he had resigned - Applicant submitted did not report for work as no work made available to him - Respondent in breach of obligation to provide work - Applicant entitled to wages for that period - Arrears due and owing - Driver
Result:
Application granted ; Reimbursement of lost wages ($5,147.01) ; Compensation for humiliation etc ($2,000) ; Arrears of wages ($1,561) ; Arrears of holiday pay ($128)(Sick pay) ; ($1,132.80)(Holiday pay) ; Costs reserved
Borrell-Johnson v UBP Ltd
18 Dec 2007, J Scott, AA 399/07, (9 pages)
UNJUSTIFIED DISMISSAL - Misconduct - Applicant skilled employee but observance of hygiene regulations very poor - Received numerous warnings for dirty gear, including final warning - Respondent ignored next failure to pass inspection, but dismissed when also failed following week - Applicant alleged no opportunity to discuss matter - Also claimed gear met required standard - Credibility finding in favour of respondent - Applicant had cavalier attitude to strict hygiene requirements of job - Respondent entitled to rely on earlier warnings - Authority satisfied applicant failed inspection, no further investigation required other than to put concerns to applicant - Process not perfect but essence of fair procedure present - Although decision to dismiss effectively made before applicant spoken to, fair and reasonable employer would have taken same approach in circumstances - Also, clear respondent did not want to dismiss applicant and had looked for ways around its own rules to give him another chance - Had applicant offered anything in mitigation respondent would have considered it - Dismissal justified - PENALTY - Applicant sought penalty for respondent’s refusal to attend mediation - Employment agreement referred to mediation but not mandatory - Respondent also failed to comply with direction to mediation from Authority but no penalty provided for in Employment Relations Act 2000 for breach of direction to mediation - Matter to be considered in costs setting - Boner
Result:
Application dismissed ; Costs reserved
Burroughs v Skin Spa Ltd t/a Essentially You
12 Jul 2007, R Arthur, AA 210/07, (5 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - No appearance for respondent - Applicant claimed accused of dishonesty and summarily dismissed - Claimed no opportunity to respond to allegation – Applicant’s sworn evidence accepted - Employee accused of dishonesty to be given information about allegation and opportunity to comment before employer makes any decision about allegation - Authority found respondent dismissed applicant without taking account of, or investigating any information or response from applicant - Dismissal unjustified - Remedies - Applicant without work for over three months - Authority satisfied applicant made adequate attempts to mitigate loss - Applicant entitled to 14 weeks reimbursement of lost wages - Applicant upset about suddenness of dismissal and humiliated by accusation of theft - Applicant embarrassed when had to explain circumstances of leaving previous employment to prospective new employers - Compensation of $2,000 awarded - PENALTY - Applicant sought penalty for failure to provide written employment agreement - Despite repeated requests and assurances, no agreement provided - Respondent had access to, and had used, Department of Labour resource that would have allowed creation of written employment agreement - No excuse for failure to provide agreement - Penalty of $500 appropriate, payable to Crown - COSTS - Applicant sought costs of $750 - Amount within Authority’s usual tariff based approach award for less than half day investigation meeting - Applicant entitled to costs - Beauty therapist
Result:
Application granted ; Reimbursement of lost wages ($5,712) ; Compensation for humiliation etc ($2,000) ; Penalty ($500)(Payable to Crown) ; Costs in favour of applicant ($750) ; Disbursements in favour of applicant ($70)(Filing fee)
Coffey v The Christchurch Press, A Division of Fairfax New Zealand Ltd
6 Dec 2007, H Doyle, CA 148/07, (13 pages)
UNJUSTIFIED DISMISSAL - Misconduct - Applicant dismissed after outburst at editor - Applicant upset when editor incorrectly changed story - Error corrected before paper printed - Editor complained applicant’s reaction inappropriate - Disciplinary meeting to discuss allegation expressed contempt for, and directed offensive language towards others - Applicant previously given final warning for similar behaviour - Admitted most of allegation but claimed strong language common at workplace - Respondent chose to dismiss applicant on notice - Process full and fair - Reasonable for employer to conclude outburst directed at editor and inappropriate - Conduct amounted to misconduct - Applicant long term employee and length of service taken into consideration by respondent - Previous warnings clear - Although applicant had made some changes since last warning, not enough for respondent to conclude behaviour would not be repeated - Dismissal justified - Failure to pay correct amount in lieu of notice did not vitiate otherwise justified dismissal and full payment now made - Journalist
Result:
Application dismissed ; Costs reserved
Conrad v Taumata Poihipi Te Kohanga Reo
10 Nov 2008, A Dumbleton, AA 385/08, (7 pages)
UNJUSTIFIED DISMISSAL – Employment agreement (“EA”) contained provision that employee prohibited from joining KiwiSaver – Applicant claimed local supervisor (“H”) stated respondent could not afford KiwiSaver and respondent did not want applicant if applicant wished to join scheme – Applicant obtained legal advice and found that employer could not legally prevent applicant from joining KiwiSaver – Applicant approached H about matter and altercation ensued, which included H placing hands on applicant’s neck – Both parties laid assault complaints with police, accusing one another of initiating aggression, but no charges laid – H served applicant with trespass notice – Parties agreed applicant was dismissed during confrontation – H confirmed dismissal with letter – Applicant wrote to chairman, raising grievance – H responded denying grounds for grievance and rejecting request for meeting – Authority found rejection of meeting request breached clause in EA – Found EA also entitled applicant to another joint meeting with or without presence of whänau or other support person – Authority noted resolution of grievance impeded by respondent’s failure to attend mediation and co-operate generally – H argued actions were self-defence – Authority preferred applicant’s evidence of events – Found applicant did not initiate fracas – Authority found respondent made no inquiry into confrontation – Respondent only aware of H’s side of events – No opportunity to have grievance considered by anyone other than H, who was too close to situation to be objective – Respondent could not fairly or reasonably conclude that applicant guilty of serious misconduct until it sought explanation from applicant – Dismissal unjustified – Remedies – No contributory conduct – Applicant entitled to reimbursement of lost wages for five weeks applicant unemployed – Applicant’s considerable distress exacerbated by unreasonably issued trespass notice banning applicant from local marae – Authority considered applicant’s sympathies for Kohanga Reo and applicant’s awareness that respondent unlikely to have spare funding for compensation award – Relatively small award to take into account nature of employer and its limited available resources - Kaiawhina Tamariki Te Reo (Maori Language Teacher)
Result:
Application granted ; Reimbursement of lost wages ($1,464) ; Compensation for humiliation etc ($800)
Davies v Smart Steel Ltd
12 Dec 2007, D Asher, WA 167/07, (7 pages)
UNJUSTIFIED DISMISSAL - Misconduct - No appearance by respondent - In statement in reply argued applicant dismissed for persistent refusal to carry out instructions - Applicant’s evidence accepted - Unaware respondent had any issues with his behaviour until received dismissal letter - Other allegations raised by respondent unsubstantiated and not of nature to justify lack of fair process - Dismissal unjustified - Arrears of wages, commission and holiday pay also due and owing - COSTS - Length of investigation meeting not specified - Full costs awarded due to respondent’s failure to engage in employment relationship problem resolution process and because sum sought reasonable for matter
Result:
Application granted ; Reimbursement of lost wages ($2,764.80) ; Compensation for humiliation etc ($10,000) ; Arrears of wages ($3,270.91) ; Holiday pay ($1,132.98) ; Costs in favour of applicant ($2,250) ; Disbursements ($70)(Filing fee)
Douglas v A & G Price Ltd
12 Nov 2007, V Campbell, AA 350/07, (9 pages)
UNJUSTIFIED DISMISSAL - Misconduct - Applicant dismissed for falsifying company records by making moulds for personal use and charging time to clients - Respondent accepted employees able to do some personal work but rules required authorisation and time not charged to clients - Applicant aware of rules and not authorised - When personal work discovered respondent arranged for union representative to be available for meeting - Applicant not told of purpose of meeting until arrived at manager’s office - Respondent’s responsibility to ensure applicant aware of meeting and issues to be discussed - Also, respondent’s rules entitled applicant to witness of his choice, not one arranged by it - However, meeting adjourned and applicant obtained further representation - Negotiated “resignation” to enable him to obtain superannuation benefits - While initial process flawed, failures rectified when meeting adjourned and applicant sought other advice - Ability to discuss consequences of decision to dismiss had tangible benefits to applicant - Actions of fair and reasonable employer - Dismissal justified - Moulder
Result:
Application dismissed ; Costs reserved
Downes v Home Improvers Ltd
5 Dec 2007, P Montgomery, CA 147/07, (9 pages)
UNJUSTIFIED DISMISSAL - Poor performance - Respondent denied dismissing applicant - Alleged she left worksite after being spoken to about performance - Submitted entitled to withhold holiday pay as applicant left without giving notice - Applicant previously warned about performance - Applicant claimed dismissed based on allegation from client and then asked to attend meeting - Applicant did not attend meeting but returned uniform and sought final pay - Respondent alleged merely attempting to arrange disciplinary meeting to resolve performance issue - Although respondent asserted no dismissal expended considerable energy supporting dismissal based on performance - Applicant’s evidence preferred - In addition, director heard applicant tell co-worker she had been fired but did not correct alleged misapprehension - Emphasis on arranging meeting attempt to create process after dismissal - Dismissal unjustified - Remedies - Performance issues previously addressed and resolved - No contribution - Entitled to wages for remainder of fixed term - Arrears of wages to be confirmed - Arrears of holiday pay due and owing - Interest 9 percent - Painter
Result:
Application granted ; Reimbursement of lost wages ($6,566) ; Compensation for humiliation etc ($3,000) ; Arrears of wages (Quantum to be determined) ; Arrears of holiday pay ($1,279.05) ; Interest (9%) ; Costs reserved
Haussman v Smith & Anor
28 Nov 2007, J Crichton, CA 144/07, (14 pages)
UNJUSTIFIED DISMISSAL - Misconduct - Applicant refused to sign employment agreement - On balance of probabilities, Authority concluded agreement represented parties bargain - Manager observed applicant yelling at animals and striking them with pipe - Actions led to injury to cow - Manager alleged felt threatened by behaviour - Applicant suspended then summarily dismissed - Use of pipe to assist in management of cows actively discouraged by respondents, but evidence did not support conclusion use of pipe prohibited as no clear instruction to applicant - Behaviour towards co-worker also given as one of grounds for dismissal - Applicant racially abused co-worker, threatened him with violence and refused to work with him - Also made threats against him - Applicant’s belief he held position of authority on farm and entitled to discipline co-worker mistaken – Manager’s version of events with cows preferred - Although process carried out quickly, fair in circumstances - Conclusion of serious misconduct warranting dismissal available to respondents - Dismissal justified - RECOVERY OF MONIES - Counterclaim - Respondents claimed applicant left farm property owing power and rent - Monies due and owing - Farm worker
Result:
Application dismissed ; Counterclaim granted ; Recovery of monies ($1,154.52) ; Costs reserved
Kirk v Tregoweath and Ors
1 Oct 2008, J Scott, AA 346/08, (6 pages)
UNJUSTIFIED DISMISSAL – Serious misconduct – Summary dismissal - No appearance by respondents – Applicant claimed respondent offered day manager position with specific hours at new restaurant - At staff meeting held day before restaurant opened, applicant discovered another employee given duty manager position – Applicant commenced work regardless as sole income earner in household - Rostered hours were variable and differed from original verbal agreement - No written employment agreement – Applicant raised matter of hours several times – In heated discussion, respondent said applicant could leave if not happy – Later same day, night manager told applicant that respondents not happy with applicant and applicant to only work nights - Applicant called to meeting where respondent alleged applicant complaining about respondents to their previous colleagues – Respondent dismissed applicant for serious misconduct – Authority found respondent should have addressed applicant’s concerns over work hours in good faith with view to resolve issue – Respondents did not follow fair process to conclude serious misconduct justifying dismissal - Dismissal unjustified – Remedies – No contributory conduct – One week’s notice period reasonable – Interest payable on wages for notice period – Applicant found new employment after five weeks – Four weeks reimbursement of lost wages appropriate –Compensation appropriate for arbitrary unjustified dismissal – COSTS – Applicant awarded $1,070 for costs - Waitress
Result:
Application granted ; Reimbursement of lost wages ($1,893.12) ; Wages in lieu of notice ($473.28)(Interest 9%) ; Compensation for humiliation etc ($2,500) ; Costs in favour of applicant ($1,070)
Komene v Nisroc Ltd
8 Nov 2007, J Crichton, CA 134/07, (7 pages)
UNJUSTIFIED DISMISSAL - Misconduct - No appearance by respondent - No written employment agreement - Respondent submitted applicant casual employee - Work allocated by weekly roster but applicant worked regular hours and able to take paid holidays - Permanent employee - Applicant contacted head chef to say unable to work due to illness - Later received message from respondent stating dismissed for not attending work - Alleged she had not notified it of absence and behaviour had occurred before - Applicant’s denial of allegations accepted - Dismissal unjustified - Chef
Result:
Application granted ; Reimbursement of lost wages ($500) ; Compensation for humiliation etc ($2,000) ; Arrears of wages ($526) ; Holiday pay ($463.11) ; Costs to lie where they fall ; Disbursements in favour of applicant ($70)(Filing fee)
Lanuel v P L Design Ltd
24 Oct 2008, P Montgomery, CA 161/08, (9 pages)
UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant claimed parties agreed applicant’s salary would increase after two month trial period – Issues arose over applicant’s hours of work, but remained unresolved – Applicant claimed that after 5 ½ weeks employment respondent said could increase salary - Applicant processed documents – Applicant dismissed for allegedly unauthorised pay rise – Respondent argued pay rise not agreed to or approved – Authority found on balance of probabilities respondent did not agree to salary increase – Found applicant honestly but mistakenly believed had been granted raise – However, applicant should have had someone else make adjustments – Found respondent should not have let issue of applicant’s hours of work drift on – Found respondent’s comments before dismissal meeting showed that had predetermined dismissal – Breach of natural justice, as determined result before allowing applicant opportunity to be heard – Respondent also gave short notice of dismissal meeting, causing applicant difficulty finding representation – Process adopted by respondent seriously inadequate – Dismissal unjustified - Remedies – Applicant entitled to six weeks lost wages – Authority considered length of employment in determining compensation award – 50 percent contributory conduct because applicant increased salary without authorisation and by not seeking formal approval for reduction in working hours – RECOVERY OF MONIES - COUNTERCLAIM – Respondent sought to recover overpayment of holiday pay and sick leave – Authority noted recovery would normally be prevented where no written employment agreement existed which would entitle respondent to recover overpayment under s6 Wages Protection Act 1983 – However, applicant was respondent’s payroll officer and paid self holiday pay and special leave entitlements before entitled to – Respondent only aware of this after dismissal – Unjust to allow applicant to retain payments – Respondent entitled to recover overpayments - Office manager
Result:
Application granted (Dismissal) ; Reimbursement of lost wages ($2,890.71) ; Compensation for humiliation etc ($2,500) ; Counterclaim granted (Recovery of monies) ; Overpayment of holiday pay and special leave ($1,147.92)
Parker v Silver Fern Farms Ltd
7 Nov 2008, D Asher, WA 148/08, (7 pages)
UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant dismissed as result of refusal to undertake drug test – When conducting search of employees’ vehicles in work car park, respondent found small quantity of marijuana in applicant’s car – Respondent also saw applicant swallowing item at time car being searched – Applicant denied ownership of drugs – Applicant left workplace without authorisation – Following day, applicant diagnosed as “medically unfit for work” – Applicant on paid leave for over one month – In letter to applicant, respondent set out “thoughts” that applicant be issued with final warning in relation to possession of drugs in workplace and that return to work conditional on undergoing reasonable cause drug test by way of urine sample – Respondent confirmed its position when parties met in person – Applicant refused to accept condition and was dismissed – Authority found as result of union membership and application of Employment Relations Act 2000 (“ERA”), respondent’s drug and alcohol policy (“policy”) was term of applicant’s employment – Policy provided that possession of illicit drugs on worksite and deliberate refusal to comply with employer’s safety standards normally warranted dismissal – Policy also provided that refusing to consent to reasonable cause drug test amounted to serious misconduct - Authority found respondent reasonably satisfied itself that applicant in possession of illegal drug on worksite – Found applicant breached contractual obligations by failing to undergo reasonable cause drug test – Respondent acted fairly and reasonably in making applicant’s return to work conditional on drug test – Authority did not accept applicant’s reasons for refusing drug test – No evidence that applicant singled out or of other issues of unfairness – Applicant only treated differently due to own conduct and responses – Applicant bound contractually and in good faith to co-operate with letter and spirit of policy – Dismissal was decision of fair and reasonable employer - Dismissal justified – Meat processing plant worker
Result:
Application dismissed ; Costs reserved
Taurarii v Tyco New Zealand Ltd
12 Dec 2007, G J Wood, WA 166/07, (8 pages)
UNJUSTIFIED DISMISSAL - Misconduct - Applicant assaulted member of public outside informal work function at local tavern - Staff advised to behave well as in uniform and representing company - Police facts stated applicant intoxicated and acted in disorderly manner throughout night - Arrested after knocked out guest who asked him to calm down - Manager aware of incident and began investigation - Applicant admitted events but otherwise uncommunicative - Disciplinary process begun and applicant dismissed - Behaviour at informal work functions could be dealt with by employer under disciplinary procedures depending on circumstances - Assault connected to employment, even though applicant not immediately identifiable as employee of respondent - Dismissal justified - Sprinkler fitter
Result:
Application dismissed ; Costs reserved
Thomson v New Zealand Ruby Rock Ltd
26 Nov 2007, H Doyle, CA 143/07, (13 pages)
UNJUSTIFIED DISMISSAL - Whether employee or independent contractor - Overwhelming evidence applicant employee - Applicant unwittingly involved in conflict between director and his wife, respondent’s other shareholder - Told to stop wife working in shop but felt uncomfortable as considered her his boss - Created stress between applicant and director - Applicant dismissed on notice - Differing reasons given for dismissal - Resulted in altercation between parties - Summarily dismissed during notice period - Respondent advanced several reasons for dismissal: redundancy, poor performance, misconduct relating to altercation and alleged refusal to co-operate when told hours would change - Respondent hired another employee and store remained open - No genuine redundancy - Process unfair and not undertaken in good faith - Fair and reasonable employer would not have expected employee to deal with situation involving wife without assistance - No proper process in relation to performance concerns and did not justify dismissal - Altercation main reason for dismissal during notice period - Other reason for dismissal was failure to co-operate with changed hours but this did not justify dismissal - Cooling off period required - Both dismissals unjustified - Remedies - Applicant’s role in altercation contributed to summary dismissal - Contributory conduct 10 percent - Arrears of wages and holiday pay due and owing - Interest eight percent - COUNTERCLAIM - Respondent’s claim for damages for losses resulting from need for director to return to New Zealand to deal with situation and impact on sales dismissed - Manager
Result:
Application granted ; Reimbursement of lost wages ($6,679.40 reduced to $6,011.46) ; Compensation for humiliation etc ($7,000 reduced to $6,300) ; Arrears of wages ($555.24) ; Arrears of holiday pay (Quantum to be determined) ; Interest (8%) ; Costs reserved
Vakapuna v PPCS Ltd
21 Nov 2007, P R Stapp, WA 154/07, (14 pages)
UNJUSTIFIED DISMISSAL - Misconduct - Applicant took break without arranging cover for position on production line - Manager noticed gap and went looking for applicant - Parties involved in altercation when applicant returned but events disputed - Manager laid formal complaint against applicant for speaking to him in threatening and abusive manner - Respondent spoke to witnesses but received conflicting reports - Chose to believe manager and applicant dismissed - Not enough information or consistency for fair and reasonable employer to conclude serious misconduct - Did not interview witness suggested by applicant - Respondent also took into account previous incident without putting it to applicant - Dismissal unjustified - Remedies - Applicant’s reaction to reasonable question inappropriate and partly caused situation - Contributory conduct 40 percent - Respondent opposed reinstatement, and applicant not convincingly remorseful, but deserved chance to prove reinstatement could work - Team leader had no issue with applicant and those involved in incident did not directly deal with applicant - Reinstatement ordered - Spreader
Result:
Application granted ; Reimbursement of lost wages (3 months reduced by 40%) ; Reinstatement ordered ; Costs reserved
Zaicek v Circle Financial Management Ltd
23 Nov 2007, L Robinson, AA 367/07, (10 pages)
JURISDICTION - Whether employee or independent contractor - Applicant conceded engagement began as contracting relationship - Common intention applicant be contractor - Significant control and integration characteristic of employment and initially no evidence applicant in business on her own account - However, situation changed when applicant formed own company and submitted invoices in its name - By performance, contract came about between respondent and applicant’s company and applicant no longer had direct contractual relationship with respondent - Applicant not terminated as independent contractor or as employee as had no relationship with respondent - In addition, company evidence applicant in business on own account - Independent contractor - Application dismissed - Authority declined to investigate counterclaim as not properly raised - Sales
Result:
Application dismissed ; Costs reserved
