Previous Section | Table of Contents | Next Section
D v M
1 Nov 2007, P Montgomery, CA 128/07, (13 pages)
UNJUSTIFIED DISMISSAL – Serious misconduct - Summary dismissal - Applicant lived and worked on respondent's farm - No written employment agreement - Respondent’s son claimed applicant sexually abused him – Respondent also claimed applicant removed daughter’s nappies at respondent’s home - Respondent called Police about allegations, and told applicant to leave farm immediately – Applicant denied allegations but said would have done same thing – Respondent claimed did not intend to dismiss, rather sole concern safety of children – Son did not disclose any sexual abuse during Police investigation – Insufficient evidence to support prosecution – Respondent called applicant and told him was “off the hook” – Applicant told respondent was “going to get him” – Likely applicant referring to pursuing employment rights - Applicant subjected to verbal abuse and physical assault when allegations revealed in community – Non-trespass order served on applicant – Absence of documentation covering terms of employment agreement and alleged warnings raised significant difficulties for Authority - Respondent claimed employment fixed term and to end after lambs sold - No evidence fixed term complied with requirements of s66 Employment Relations Act 2000 - Employment not fixed term - Authority found applicant left farm at direction of respondent, and solely because of untested allegations – Failed to address employment situation at all – No investigation carried out – Police investigation meant substantive basis for sending away eroded significantly – Respondent took no steps to address applicant on how inevitable termination could be resolved, or to reach settlement when was open to it – Applicant’s statement would have done same thing did not absolve respondent of its obligations – In circumstances, relationship irretrievable – However, respondent not relieved of obligations to do whatever fair and reasonable for applicant – Dismissal unjustified – Remedies - Interest 9.5 percent on lost wages - ARREARS OF HOLIDAY PAY - Holiday pay due and owing - Interest 9.5 percent - Permanent name suppression of parties and witnesses ordered
Result: Application granted ; Reimbursement of lost wages ($6,571)(4 months) ; Arrears of holiday pay ($917.30) ; Interest (9.5%) ; Compensation for humiliation etc ($12,000) ; Costs reserved
Heremia v Wilding International Ltd
8 Aug 2007, V Campbell, AA 237/07, (13 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Summary dismissal - Applicant initially in relationship with respondent's manager ("P") - P subsequently involved with applicant's friend and co-worker ("C") - Relations deteriorated to point applicant asked to be separated from C - C made formal complaints applicant intimidated her and other staff - Advised to attend meeting and issue serious misconduct - Applicant requested specific information about complaints but no information provided - P conducted investigation and concluded applicant intimidated, bullied, and victimised C - Applicant believed would not receive fair hearing and asked for mediation - Applicant's explanations not accepted - P also considered applicant's refusal to agree to changes in employment agreement and alleged organising of staff union meetings serious misconduct, and dismissed applicant - In order to safely conclude applicant victimising, intimidating, or bullying C, P needed to be satisfied actions repeated, carried out with desire to gain power or exert dominance and with intention to cause fear and distress - Fact applicant took action to avoid contact with C did not mean was intimidating, victimising, or bullying C - Not satisfied P undertook full and fair investigation into allegations and P reached several firm conclusions prior to meeting - Disciplinary process dogged by bias and predetermination and investigation procedure and dismissal wholly deficient - Fair and reasonable employer would have taken steps to resolve concerns and improve applicant and C's work relationship - Respondent's actions and how it acted not those of fair and reasonable employer - Caregiver
Result: Application granted ; Reimbursement of lost wages ($661.50)(2 weeks) ; Compensation for humiliation etc ($5,000) ; Costs reserved
Kurene and Anor v United Group Rail (NZ) Ltd
10 Aug 2007, D Asher, WA 21A/07, (11 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Summary dismissal - First applicant ("K") dismissed for alleged failure to follow reasonable instruction of supervisor ("S") – During first investigation meeting, respondent conceded K would be reinstated on interim basis - At substantive investigation meeting, respondent conceded dismissal unjustified, and agreed to permanently reinstate K - BREACH OF CONTRACT - Damages - Applicants claimed respondent breached implied term of employment agreement by failing to ensure supervisor (“M”) did not engage in intimidating/threatening conduct towards S as witness - S gave evidence at investigation meetings K complied with instruction – S later claimed M approached him after interim investigation meeting regarding evidence – S informed applicant but asked she keep it confidential - Respondent claimed no loss to K arose out of M's actions - M’s actions perilously close to deliberate threats and intimidation – Authority prepared to accept M did not intend to persuade S to change his evidence - M’s actions would have intimidated any reasonable person – Actions not sanctioned by respondent - Authority satisfied K damaged by actions - Damages appropriate - Applicants' also alleged contempt of court - Actions did not happen within "the face of the Authority" as required by s196 Employment Relations Act 2000 ("ERA") - Actions did not amount to contempt of Authority - No need to adopt referral to Employment Court procedure under s196 - Because of seriousness of M’s actions, Authority referred determination and copies of submissions to Solicitor-General - Remedies - Respondent claimed K contributed to grievance by intending not to follow S's instruction - No contributory conduct found - Authority took into account respondent's concessions and offers of compensation and costs in award of compensation
Result: Applications granted ; Compensation for humiliation etc ($14,000) ; Breach of contract ($6,000)(Damages) ; Costs reserved
Monahan v Lister's Pioneer Services Ltd
22 May 2007, YS Oldfield, AA 156/07, (3 pages)
UNJUSTIFIED DISMISSAL - Misconduct - Applicant received offence notice for failure to produce log book, and summons to appear in Court - Summons copied to respondent - Offence carried one month mandatory loss of licence - Respondent understood applicant did not intend to defend charge - Gave him notice employment would terminate on date of Court hearing - Applicant plead guilty to offence but did not lose licence - Court accepted explanation for failure to produce log book - Applicant informed respondent of outcome and asked for reimbursement of lost wages and reinstatement - Respondent offered reinstatement only - Applicant did not accept offer and raised personal grievance - Applicant offered no explanation to respondent - Grounds for summary dismissal established - However, dismissed because of possible loss of licence, not for failing to produce log book - Decision premature - Dismissal unjustified - Remedies - Failure to produce log book applicant's fault, and very serious - Failed to give respondent explanation gave to Court or mitigate loss by accepting reinstatement offer - Contributory conduct 50 percent - Truck driver
Result: Application granted ; Reimbursement of lost wages ($3,375 reduced to $1,687)(5 weeks) ; Compensation for humiliation etc ($1,000 reduced to $500) ; Costs reserved
Morgan v Maxon Building Contractors Ltd
2 Jul 2007, G J Wood, WA 95/07, (6 pages)
UNJUSTIFIED DISMISSAL – Misconduct - Applicant dismissed for failure to account for monies advanced to him to pay for parking company vehicle – Applicant responsible for driving other employees to work site – Each week, applicant given cash to cover cost of parking – However, applicant did not pay for parking everyday and took to circling streets looking for free car parks – When situation came to respondent’s attention it wrote to applicant and gave driving responsibilities to another employee – No further contact between parties, each expected other to make first move – Applicant took sick leave – Although provided medical certificate, respondent doubted genuineness of sickness – Respondent determined to dismiss applicant and sent him backdated letter of dismissal – Also refused to pay applicant sick leave – Applicant met with respondent, returned extra parking money and asked for job back – Respondent declined, but paid sick pay when approached by Labour Inspector – Much later, offered applicant job back with fresh start, but he declined – Both parties responsible for failure to communicate – Respondent’s actions not those of fair and reasonable employer – Applicant given no opportunity to explain parking money or respond to sick leave allegation – Dismissal unjustified – However, fair and reasonable employer entitled to conclude applicant had no reasonable explanation for retaining money when no explanation proffered, or money returned, for two weeks – Remedies – Applicant failed to mitigate loss and remained unemployed – Declined to seek work with temp agency as did not have a telephone for personal reasons – Had also refused reinstatement – Not entitled to lost wages – Applicant gave limited evidence of loss of dignity resulting from dismissal – Failure to look for work showed not too upset about not having paid employment – Requests for parking money when not required and failure to explain contributed to grievance – Behaviour inconsistent with duty to be responsive and communicative - Authority also took into account applicant wasted company and employees' time looking for free parks – Contributory conduct 50 percent – Labourer
Result: Application granted ; Compensation for humiliation etc ($1,000 reduced to $500) ; Costs reserved
Stiekema v Centurion Management Services Ltd
3 Dec 2007, M Urlich, AA 377/07, (17 pages)
UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant told co-worker did not think was right staff should be required to attend weekly devotional sessions and could not understand how director could preach to staff while engaging in “fraudulent transactions” – Co-worker raised concerns about allegations with director (“C”) – Directors undertook investigation and found applicant spread rumours of fraud, amounting to serious misconduct – Applicant claimed raised concerns with director (“P”), which P denied - Final warning issued with stipulation applicant undertake part-time study – Applicant went on sick leave and subsequently resigned – Applicant had not received response about personal grievance issues and had agreed to mediation - Respondent’s inquiry about likely return date reasonable – Breaches of employment agreement (“IEA”) not so serious to make it reasonably foreseeable applicant would resign - No constructive dismissal - UNJUSTIFIED DISADVANTAGE – In alternative claimed disadvantaged by disciplinary process and warning – Investigation process flawed given P and C’s wife’s involvement in outcome and penalty – Respondent could not demonstrate explanations given unbiased consideration – Stipulation to undertake study fell outside ambit of IEA – Flaws significant and vitiated investigation process and outcome – Unjustified disadvantage – Discrimination – Applicant claimed requirement to attend weekly “devotion” meetings an unlawful discriminatory practise - IEA provided attendance compulsory but participation voluntary – Applicant initially “embraced” devotions – However, following one devotion meeting applicant upset by what she claimed director said and no longer participated – Directors told applicant had legal opinion staff could be required to attend but not to participate - On final day applicant raised concern compulsory attendance not “right” – Respondent had no opportunity to address concerns – No disadvantage arose given applicant not required to attend devotions after raised objection – Evidential basis for unjustified action not made out – Authority commented had evidential basis been made out, would have had difficulty accepting could compel staff to attend devotions if attendance contrary to own religious beliefs – No evidence attendance contrary to applicant’s religious belief – Remedies – Applicant spread rumour of improper financial transactions – Conduct inappropriate – Allegations had no reasonable basis – Contributory conduct 50 percent
Result: Application dismissed (Unjustified dismissal) ; Application partially granted (Unjustified disadvantage) ; Compensation for humiliation etc ($6,000 reduced to $3,000) ; Costs reserved
Previous Section | Table of Contents | Next Section
