Personal grievance - Unjustified disadvantage - 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
C v D Ltd
22 Sep 2008, J Crichton, CA 140/08, (10 pages)
UNJUSTIFIED DISADVANTAGE - Applicant alleged respondent failed to appropriately resolve his sexual harassment complaint, breaching employment agreement and duty of good faith - Applicant alleged respondent’s managing director (“E”) rubbed genitals against applicant whilst applicant bent over, in action referred to as “dry humping” - Applicant alleged two incidents occurred during Christmas function where workmates flicked at or near genitals - Applicant alleged E made remarks of a sexual nature about applicant and applicant’s adult daughter - Common ground that respondent took immediate steps to ensure behaviour ceased when became clear applicant offended - Respondent did not deny behaviour but denied any sexual connotation to behaviour - Argued behaviour endemic to industry and could not have done any more than it did - Authority found situation not fully remedied by protecting applicant from behaviour as furthered ostracised him causing distress and anxiety - Found fair employer would have progressively taken steps to remove offending behaviour from workplace altogether - Did not accept respondent’s argument that behaviour not sexual - Authority concluded applicant suffered unjustified disadvantage - Authority also satisfied respondent breached employment agreement and statutory duty to provide safe working environment - REMEDIES - Applicant’s health suffered and became stressed - Applicant registered as sickness beneficiary and had very limited other employment since left respondent - $12,500 compensation appropriate - Reimbursement for lost wages awarded - Building labourer
Result:
Application granted ; Reimbursement of lost wages (Quantum to be determined) ; Compensation for humiliation etc ($12,500) ; 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
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
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
Johnstone v The Chief Executive in respect of the Inland Revenue Department
30 Nov 2007, P R Stapp, WA 159/07, (14 pages)
UNJUSTIFIED DISADVANTAGE - Applicant claimed number of disadvantages arising from secondment - Respondent submitted claims raised outside 90 day time limit or filed outside three year time limit - In respect of first complaint, applicant agreed to internal investigation and no personal grievance raised - Applicant advised would be on leave during investigation but respondent considered she should return to work if well - Sought independent doctor’s opinion who concluded able to return part time - Applicant remained absent on unauthorised leave and challenged decision but fell short of raising grievance - Applicant had problems with report from internal investigation - Concerns about comment by manager not raised or filed in time - Not disadvantaged by secondment ending early - Breach of privacy allegation filed out of time - Other complaints made by applicant not pursued as grievances - Also complained about allegedly defamatory comments made by other employees during internal investigation - Respondent could not be held responsible for employees’ personal views - Also alleged failure to provide safe workplace because investigation concluded disciplinary action against co-workers not justified - Absence of medical evidence from applicant to substantiate claim - Applicant granted leave and respondent took all practicable steps to protect her in investigating complaint and acting on recommendations - Comments from co-workers may have been unwise but did not meet threshold to establish harm, causation or failure to act by respondent - No grievances raised or filed in time - All issues subject of applicant’s grievances dealt with by respondent - Not appropriate to exercise discretion to extend time - Claims dismissed
Result:
Application dismissed ; 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)
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
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
