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Cooper v Mars New Zealand Ltd t/a Mars Petcare
6 Dec 2007, D Asher, WA 163/07, (7 pages)
UNJUSTIFIED DISADVANTAGE – Applicant given written warning for non-attendance because of genuine ill-health – Absent 23 days over 10 months due to illness – When sick leave exhausted used annual leave - Genuineness of absences not challenged – Warning to remain in place for 12 months – Applicant claimed disadvantaged because concerned if sick again would lose job - Respondent wrong to use misconduct process – Warning unjustified - Absences for genuine reasons and no suggestion of deliberate breach of attendance obligations – However, applicant suffered no, or negligible, disadvantage to justify remedy – Alternatively compensation would be negligible because only first warning and would not have survived scrutiny had respondent tried to act on it – Applicant accepted respondent could justifiably have raised concerns about absenteeism – Applicant would enjoy benefit of public determination – Machine operator
Result: Application granted ; 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
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