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Bentley v Land Transport New Zealand
25 Jan 2008, G J Wood, WA 10/08, (9 pages)
UNJUSTIFIED DISADVANTAGE - Applicant claimed warning for excessive use of sick leave unjustified - Entitled to nine days paid sick leave per year under collective employment agreement ("CEA") - Policy relating to use of sick leave included process to monitor use and deal with suspected abuse or long term absence - Throughout employment applicant took more sick leave than annual paid entitlement - Respondent accepted she had genuine reasons for great use of sick leave - Policy only provided for disciplinary meetings for alleged misuse of sick leave - Applicant not accused of this - No misconduct alleged by respondent to justify warning - Applicant's use of sick leave not at level to justify warning - Context also included provision in CEA for unpaid sick leave in excess of paid entitlement - Respondent applied sick leave policy mechanistically and individual circumstances not taken into account - Also, applicant's reasons for use of excess sick leave such that no fair and reasonable employer would have disciplined her for abuse or misuse of sick leave - Unjustified disadvantage - Remedies - Applicant discouraged from taking leave needed to support her family, which included foster children - Also meant did not take leave when sick herself, which potentially exposed other workers to harm - Insufficient evidence to conclude warning caused her to miss out on promotion - Customer service representative
Result: Application granted ; Compensation for humiliation etc ($3,000) ; Costs reserved
Chiu v New Deli & Cafe Ltd and Anor
18 Nov 2008, A Dumbleton, AA 394/08, (35 pages)
PRACTICE AND PROCEDURE - Respondents two separately incorporated companies with same directors - Written employment agreement stated both respondents were "The Employer" - Authority found applicant employed by both respondents at same time - UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Applicant advised respondent that pregnant - Applicant raised disadvantage grievance with respondents, stating disadvantaged and discriminated against by reason of pregnancy - Applicant dismissed two days later - Alleged ground for dismissal was failure to provide proof of eligibility to legally work in New Zealand - Respondent offered job back on condition applicant provided proof of immigration status - Applicant claimed dismissal unjustified due to discrimination by reason of pregnancy - Respondent denied claims, and argued applicant employed 3 weeks, not six months - Conflict in evidence as to term of employment - Parties called evidence from customers of café, past and present employees, telephone records, forensic examination of handwriting, bus tickets and bank deposit receipts - Authority found more than likely that applicant employed for over six months, and that respondents called false evidence - Authority rejected respondent's alleged justification for dismissal - Accepted applicant's evidence that already provided satisfactory proof of eligibility to work so did not provide it again when requested - Found respondent's real concern likely impending disclosure to IRD of respondent's failure to pay PAYE on wages when applicant applied for paid maternity leave - Applicant's immigration status pretext for dismissal - Real reason applicant's pregnancy or impending parental status and its further consequences - No justification for dismissing applicant on grounds of pregnancy - Dismissal unjustified - Due to close proximity in time and event, Authority found dismissal grievance subsumed disadvantage and discrimination grievances - Found in any case, no actual disadvantage or discrimination occurred prior to dismissal - Remedies - No contributory conduct - Authority considered when applicant would have stopped work due to pregnancy - Requirement to mitigate loss considered against respondent's failure to attend mediation in timely manner - Thirteen weeks lost wages awarded - Applicant suffered substantial emotional harm through dismissal and loss of chance to secure maternity leave - Harm aggravated by respondent's conduct in persisting with false evidence and insulting insinuations about applicant - $8,000 compensation appropriate - PARENTAL LEAVE - Authority found unjustified dismissal prevented applicant from applying for maternity leave - No reason why application would not have been accepted - Entitled to compensation for loss of opportunity - Authority considered compensation for loss of expected statutory benefit could be awarded under s123(1)(c) ERA - Civil remedy of compensatory damages for breach of contract also available under s162 ERA - Loss quantifiable as would have received 14 weeks pay - Loss directly and foreseeably arose from respondent's unlawful act of unjustified dismissal, and not remote consequence - Authority awarded sum to restore applicant to position if opportunity to apply for paid maternity leave not unlawfully taken away - ARREARS OF WAGES - Authority found applicant received holiday pay for three weeks rather than six months - Authority accepted applicant's calculations - Holiday pay owing - Two days pay also owing - COSTS - Applicant represented self - No costs or disbursements awarded - Waitress
Result: Application granted (unjustified dismissal) ; Arrears of wages ($239.20) ; Arrears of holiday pay ($1,384.27)(Interest 6%) ; Reimbursement of lost wages ($8,023,60)(Interest 6%) ; Compensation for humiliation etc ($8,000) ; Compensation for loss of benefit of paid parental leave ($4,619.47) ; Application dismissed (unjustified disadvantage) ; No order for costs
Cochrane v Kitchen House Ltd
19 Jan 2009, L Robinson, AA 12/09, (7 pages)
UNJUSTIFIED DISMISSAL - Applicant claimed respondent failed to consider redeployment as alternative to dismissal - Respondent argued no vacancy to redeploy applicant - Applicant employed as Operations Manager referred to by parties as "Kitchen Wizard" - Respondent told employees to expect redundancies - Applicant informed position redundant - Respondent asked applicant to "come up with a position the company had not thought of" - Applicant's employment terminated for redundancy when could not put forward new position - Twenty employees made redundant by respondent in two month period - Applicant discovered "Kitchen Wizard" vacancy listed by recruitment agency for respondent - Applicant argued agency diverted applicant away from vacancy and instead invited applicant to discuss alternative positions - Respondent argued listed vacancy a mistake - Vacancy advertised again and respondent argued was another mistake - Applicant discovered further vacancy for "Operations Manager" position - Recruitment agent ("P") confirmed position was with respondent - Authority accepted respondent's evidence that redundancy genuine - Respondent argued sales positions available but applicant not considered because did not have sufficient sales experience - Applicant claimed did have sufficient sales experience - Authority found regardless, respondent failed to enquire - Applicant denied told by P that vacancy had revised sales focus - Authority found odd P appreciated applicant's sales experience and referred applicant to vacancies with sales element but deemed applicant not right for respondent's vacancy - Authority found suspicious evidence by respondent and P that P briefed advertised vacancy should involve sales, yet sales element omitted from final advertisement - Authority concluded P an unreliable witness - Found unlikely advertisements placed actual mistakes - Authority concluded Operations Manager vacancy available at time applicant made redundant - Applicant entitled to be considered for vacancies as alternative to termination of employment - Authority regarded respondent's defence with suspicion as too many mistakes and inconsistencies which defied credibility - Dismissal procedurally unjustified - Remedies - No contribution - No award for reimbursement of lost wages as redundancy for genuine commercial reasons - Authority found $10,000 compensation appropriate given distressing circumstances experienced by applicant - Operations Manager
Result: Application granted ; Compensation for humiliation etc ($10,000) ; Costs reserved
Cox v Kiwi Green Island Club Ltd
6 Dec 2007, J Crichton, CA 137/07, (15 pages)
UNJUSTIFIED DISADVANTAGE - Applicant alleged lost control of duties central to employment - Applicant considered duties reallocated after parties discussed possibility of redundancy - When restructuring cancelled applicant sought to have duties contained in job description returned to him, especially master planning - Respondent did not consider job description reflected agreed duties - Applicant's involvement with master planning changed when respondent arranged joint venture - Applicant involved in arrangement and knew or ought to have known consequences and made no objection - Not unreasonable to expect applicant as senior employee to raise concerns - Applicant not responsible for master planning in first place, therefore not subsequently stripped of responsibility - Applicant's allegation put into radically different position from that previously occupied not accepted - Applicant also complained about shortage of work - Claimed work whittled away to such extent had no alternative but to resign - Authority not satisfied claim made out - Project management, by its nature, subject to fluctuations in work load - Authority not satisfied situation anything other than effect of business process - No disadvantage - UNJUSTIFIED DISMISSAL - Constructive dismissal - Inappropriate pressure placed on applicant to sign amendment to employment agreement removing entitlement to redundancy compensation - Respondent accepted matter handled badly - Breach of statutory obligation to act in good faith and implied term of fair and reasonable treatment - Applicant left with no other action than to leave - Constructive dismissal - Remedies - Global compensation award also dealt with breaches of good faith and implied term - Project manager
Result: Application granted in part ; Reimbursement of lost wages ($21,342.99) ; Compensation for humiliation etc ($9,000) ; Disbursements ($70)(Filing fee) ; Costs reserved
Cui v The Vice-Chancellor of the University of Auckland
19 Jan 2009, L Robinson, AA 14/09, (6 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Respondent argued applicant dishonestly provided incorrect information on curriculum vitae ("CV") - Applicant submitted CV online and subsequently offered employment - Respondent called applicant to meeting to discuss performance concerns - Meeting neither formal or disciplinary - Applicant's comments at meeting made respondent question applicant's stated qualifications - Respondent became aware applicant's qualification not conferred as represented in CV - Disciplinary meeting held where applicant argued accidentally deleted words "to be completed" from CV and thought had explained error during job interview - Respondent unable to accept applicant's submission as plausible - Concluded lost trust and confidence in applicant as actions misleading and dishonest - Respondent provided applicant with letter terminating employment for serious misconduct - Authority found applicant failed to inform respondent had not completed qualification at job interview - Authority found respondent entitled to reject applicant's explanation and to form view CV not submitted in error and so conclude dishonest representation about qualification - Found respondent entitled to conclude serious misconduct - Misconduct went to heart of contract - Dismissal justified - Application dismissed - Costs reserved
Result: Application dismissed ; Costs reserved
Gomes v Ministry of Social Development
14 Dec 2007, A Dumbleton, WA 168/07, (36 pages)
UNJUSTIFIED DISMISSAL - Applicant dismissed as respondent considered his relationship with manager irrevocably broken down and lacked trust and confidence - Applicant had lodged disadvantage grievances with Authority but not resolved at time of dismissal - Dismissal substantively grounded on adverse consequences in workplace of applicant continuing to seek resolution of disadvantage grievances - What respondent regarded as conduct contributing to loss of trust and confidence was conduct carried on by applicant with reasonable and proper cause - Dismissal took away opportunity to meaningfully resolve grievances - In dismissing applicant, respondent also held him to account partly for making bullying complaint and challenging report from investigation and investigation process - Applicant had reasonable grounds for some of rejection - Fair and reasonable employer would not have relied on matter as part of grounds for dismissal - Dismissal unjustified - UNJUSTIFIED DISADVANTAGE - Original disadvantage grievances also dealt with by Authority - Applicant alleged disadvantaged by performance review - Independent review reached same conclusion as original assessment - Review conducted fairly - No disadvantage - Second grievance related to removal from role as project leader - Applicant involved in review of suitability for role - Removed for genuine operational reasons and not disadvantaged - DISCRIMINATION - Alleged discriminated against by reason of involvement in union activities, namely submitting another personal grievance within 12 months of latest action complained about - Disadvantage grievances substantial part of reason for act of discrimination, which resulted in dismissal - Presumption respondent discriminated against applicant not rebutted - Discrimination grievance upheld - Remedies - Reinstatement to former position impracticable as relationship with manager completely broken down - Reinstatement to position no less advantageous ordered - Unit manager
Result: Application granted (Discrimination and dismissal) ; Reinstatement ordered ; Compensation for humiliation etc ($10,000)(Dismissal) ; ($4,000)(Discrimination) ; Application dismissed(Disadvantage) ; Costs reserved
Gurnell v School Centre Irene Ltd
22 Jan 2008, A Dumbleton, AA 18/08, (15 pages)
UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Constructive dismissal - No breach of good faith when employment entered into - Expectation of pay rise not based on promise made by respondent - During employment applicant raised personal grievance alleging unjustified disadvantaged - At same time applicant raised grievance, respondent sought meeting to discuss concerns relating to misuse of confidential information and misappropriation of money - Police involved and applicant suspended - Following investigation, issued written warning for failure to follow policy in relation to receipt of money - Few days later applicant resigned - Not suspended because raised grievance - Respondent actions did not fit within definition of lockout - Any possibility of disadvantage arising from warning had not crystallised before employment ended - Respondent had proper cause for disciplinary investigation and warning reasonable - Resignation in response to warning not foreseeable - Also alleged respondent breached duty to ensure safety by causing distress by raising allegations at a time when she was already on sick leave because of stress - Respondent did not take any appreciable risk with regard to applicant's health - No breach of s236 Employment Relations Act 2000 as disciplinary meetings not convened pursuant to a statutory right "to do anything or take any action" - Respondent met required health and safety standards - Resignation precluded resolution of grievances - No useful purpose served by going back and attempt to redress the various problems raised - Matters resolved in favour of respondent - Assistant manager
Result: Application dismissed ; Costs reserved
Hawea v Attorney-General in respect of the Chief Executive Officer of The Department of Child, Youth & Family Services
22 Jan 2008, D King, AA 17/08, (9 pages)
UNJUSTIFIED DISADVANTAGE - Grievance related to meeting and applicant's return to work following period of unpaid leave - Applicant called to meeting to discuss performance issues - Alleged given insufficient notice but no objection raised at time - Applicant declined opportunity to obtain representation - Meeting led to applicant being put on performance contract - Applicant argued respondent breached supervision policy as no documents regarding performance produced and meeting unfair as not previously told of any performance deficits - However, evidence established issues previously drawn to her attention - Meeting did not constitute disadvantage - Applicant had left work and remained on stress leave until previously arranged leave without pay began - While on leave approached respondent about returning early - Parties agreed applicant would return on performance plan because of previous issues and changes during absence - Applicant later retracted agreement to performance plan - Performance plan not implemented - No disadvantage - Social worker
Result: Application dismissed ; Costs reserved
Hough v The Commissioner of Police
17 Dec 2007, P R Stapp, WA 169/07, (10 pages)
UNJUSTIFIED DISADVANTAGE - Applicant challenged adverse report and delays associated with its production - Claimed disadvantaged his employment, particularly career advancement - Applicant disciplined over file management process - Advised being reported to District Commander ("DC") under Police Regulations 1992 - Applicant advised DC did not consider initial investigation not fair or impartial - DC sought independent review of investigation - Review recommended reducing penalty to adverse report - Applicant unaware of review - DC concluded applicant failed to perform at satisfactory level and issued adverse report to remain on file for 4 years - Applicant had not complained of delays during process - Delays not deliberate and did not disadvantage applicant - Disciplinary process conducted on papers not ideal but accepted practice at respondent and applicant took no issue with that at time - However, fair and reasonable employer would have met with applicant and sought clarification on conflicting information - Action required due to seriousness of potential outcomes - However, overall process not unfair - Substantive conclusion relating to delays on file open to DC - Applicant also accepted could have done things differently - No evidence of casual link for humiliation etc - Applicant not disadvantaged - Police Sergeant
Result: Application dismissed ; Costs reserved
It Maniacs Ltd v Ford
12 Nov 2007, R A Monaghan, AA 351/07, (45 pages)
BREACH OF CONTRACT - Applicant claimed breach of contract and sought damages - Applicant claimed respondent attempted to set up competing business, enticed applicant's employee to work for him and breached confidential information and IT policies - Applicant also invited Authority to conclude respondent in contempt of Authority by failing to produce evidence - Respondent intended to set up business to sell specialist computer software - Applicant advised that plan acceptable if did not promote business to applicant's clients or work on business during applicant's time - Applicant offered respondent franchise opportunity which respondent rejected - Proposal included applicant's financial information and business plan - Information provided on confidential basis - Forensic examination revealed respondent copied several of applicant's client's CVs to laptop - Applicant claimed was evidence respondent using CVs for own business - Respondent argued CVs necessary to test software - Applicant's primary concern respondent setting up business in competition with applicant and breached obligations as employee - Authority identified supplementary breaches prior to hearing primary breach - Claimed breached Employment Agreement ("EA") by purchasing domain name, preparation of stationary, transferring large quantity of applicant's information to home server, registering recruitment website, testing applicant's software, and registration of new business - Authority found duty of fidelity did not prevent employees preparing for own business provided done without breaching duty of trust and confidence to current employer - Authority found no evidence respondent offered employment to co-worker - Authority not persuaded respondent diverted applicant's candidates to own business - Found allegations regarding misuse of confidential information and intellectual property was conduct capable of undermining trust and confidence, however, in these circumstances breaches not sufficient in themselves to amount to undermining conduct - Authority found respondent's credibility dented by deleting material from personal laptop which prevented applicant and Authority from identifying extent of activities - Authority considered applicant's evidence not as compelling as applicant believed - However, respondent's subsequent conduct seriously suggested guilty conscience - Authority concluded respondent's failure to inform applicant that working on new business after declining franchise offer favours finding respondent preparing to establish business in breach of duty of fidelity - Damages - Authority satisfied not enough evidence to warrant order that respondent repay salary - Found no loss suffered by applicant as result of breach of EA by respondent - Respondent ordered to reimburse applicant for costs incurred in forensic examinations ($14166) - Found respondent aggravated matters by deleting material after became aware of applicant's concerns - Authority found not enough evidence to support other damages claims - COUNTERCLAIM - UNJUSTIFIED DISADVANTAGE - Respondent claimed decision to suspend unfair as not given opportunity to be heard before suspension - Found no disadvantage as applicant's interests in protecting its proprietary information justified suspension without respondent being heard - UNJUSTIFIED DISMISSAL - Applicant argued decision to dismiss based on evidence in forensics report - Authority did not accept applicant's reasons for failing to reconvene disciplinary meeting - Respondent's breach of fidelity reflected extent to which could commence a competing business, however, when made decision to dismiss applicant read more into material available and therefore resulting conclusions flawed - Authority found use of respondent's "VPN connection" from home server a breached applicant's IT policy but risk to security not expressly relied on as reason for dismissal - Authority concluded reasons for dismissal not properly put to respondent - Dismissal unjustified - Remedies - Authority concluded respondent's efforts in response to applicant's investigation made respondent author of own misfortunes - No remedies awarded - ARREARS OF WAGES - Authority did not accept wages could be withheld on account of damages when neither quantum or liability established - Authority ordered applicant to pay $9328 being final pay and holiday pay unlawfully withheld from respondent - PENALTY - Authority found respondent's approach to applicant's information irresponsible but not breach of good faith - Authority concluded view of respondent's conduct reflected in remedy being declined for personal grievance - Penalty declined - National sales manager/senior recruitment consultant
Result: Application granted (Breach of contract) ; Application dismissed (Penalty) ; Damages ($14,166.54) ; Counterclaim granted (Dismissal) ; Counterclaim dismissed (Disadvantage) ; Counterclaim granted (Arrears of wages and holiday pay) ($9,382.57) ; Costs reserved
Jessop v Chief Executive of the Department of Corrections
30 Jan 2008, R Arthur, AA 25/08, (12 pages)
UNJUSTIFIED DISADVANTAGE - Applicant alleged disadvantaged by way bullying complaint about him dealt with - Manager found insufficient evidence to warrant further inquiry but, after interviewing number of staff, decided to provide applicant with feedback on staff perceptions of management style - Applicant disadvantaged by investigation as manager: only spoke to staff suggested by complainant, decided applicant needed to be told to improve management style before he had chance to comment, and informed two employees of conclusions before hearing from applicant - However, respondent's subsequent actions not unjustified - Once applicant raised concerns manager provided relevant information to applicant and took into account his comments - Respondent also apologised for failures - Respondent's decision not to change conclusion applicant needed to work on how manner could be perceived by staff not unjustified - Unjustified disadvantage - Remedies - Applicant did not seek monetary remedy, but acknowledgement and apology - Respondent already provided apology and determination meant now in public domain - No further remedies required - Order prohibiting publication or identification of offenders referred to in evidence - Service manager
Result: Application granted in part ; Costs reserved
Jinkinson v Oceania Gold (NZ) Ltd
17 Jan 2008, P Cheyne, CA 5/08, (9 pages)
UNJUSTIFIED DISMISSAL - Redundancy - Casual employment agreement - Applicant worked on consistent basis following roster but at times was told no work available and did not work or get paid for those periods - Not paid when took other days off - Applicant casual employee - Respondent proposed combining number of positions into new roles - Applicant not appointed to new position - Employment terminated despite new positions remaining vacant - Genuine redundancy - Even if applicant right to refute not being offered new position, did not change fact original role redundant - Not a case about selection for redundancy - Employment in original position to end once respondent decided to disestablish position - Criteria used to appoint people to new positions not relevant to decision to disestablish original role and not required to be disclosed - UNJUSTIFIED DISADVANTAGE - Respondent did not arrange for applicant to be told of dismissal in circumstances where support person could be present - Aware applicant expected to be offered new position and would be dismissed - Breach resulted in avoidable stress - Grievance better seen as unjustified disadvantage - Grade controller
Result: Application granted (Disadvantage) ; Compensation for humiliation etc ($2,000) ; Application dismissed (Dismissal) ; Costs reserved
Koehler v New Zealand Forst Research Institute t/a Scion
9 Jan 2009, D King, AA 5/09, (11 pages)
UNJUSTIFIED DISADVANTAGE - Applicant claimed respondent failed to pay redundancy compensation - Applicant claimed accepted secondment in Australia on basis would return to same role in New Zealand on conclusion of secondment - Joint venture ("E") formed between respondent and Australian Commonwealth Scientific and Industrial Research Organisation ("CSIRO") - E an unincorporated joint venture therefore employees employed by either respondent or CSIRO - Applicant's Client Services Manager role converted to E's Operation Manager role - At conclusion of secondment transitional Operations Manager role established permanently in New Zealand - Applicant later appointed to acting E Finance Manager role but continued duties in Operation Manager's role - Applicant sought relocation for personal reasons to Australia as Operations Manager's role involved extensive travel between Australia and New Zealand - E's CEO arranged for relocation of Operations Manager's role to Australia - E's CEO notified respondent that applicant to be transferred to CSIRO payroll under terms of CSIRO enterprise agreement - No agreement between respondent and CSIRO that applicant seconded to CSIRO - Applicant's employment with CSIRO not E - Respondent's human resources manager ("H") explained to applicant only way to transfer to Australia would be to take two years leave without pay ("LWOP") from respondent - LWOP granted, however, H stated no guarantee of ongoing employment at terms end - H reiterated if no ongoing employment with respondent then not entitled to redundancy compensation - Applicant contacted H again and sought confirmation that seconded and lack of redundancy compensation clause be withdrawn - H contacted applicant and reiterated no secondment, on unpaid leave, and not entitled to redundancy compensation - Applicant sought further clarification of employment status from CEO - Applicant received reply which gave inconsistent interpretation of LWOP policy - Decision by E board to terminate joint venture arrangement made applicant's employment with CSIRO redundant - Applicant sought return from LWOP to work for respondent - Respondent offered applicant alternative position and told not entitled to redundancy compensation if offer rejected - Applicant rejected offer on basis did not have technical competencies for role - Unjustified disadvantage claimed when LWOP and employment with respondent ended - Authority found applicant on LWOP from respondent and not seconded to either E or CSIRO - Found reference to secondment in E and CSIRO's policies simply for basis on which relocation costs would be paid - Found employment with respondent not terminated because made redundant and at time of redundancy CSIRO employee - Authority found when decided not to accept respondent's offer at end of LWOP then not entitled to redundancy compensation - Also found no entitlement to redundancy compensation under LWOP policy - Authority accepted respondent's submission that question of suitable vacancy only arose in relation to question of whether employee could return to work for respondent after LWOP - Respondent argued reason why applicant advised to take LWOP because if joint venture partners decided to recognise service of each others employees then being on LWOP would mean any service related entitlement with respondent would not adversely impact on terms of employment with CSIRO - Authority found interpretation of LWOP by CEO incorrect - Found applicant not entitled to redundancy compensation under LWOP policy because not redundant within definition of EA and policy - Authority agreed with respondent that even if applicant redundant within redundancy definition not entitled to redundancy compensation due to rejection of reasonable alternative offer of employment with respondent - Authority found applicant offered reasonable option of employment which he chose not to accept - No disadvantage - PENALTY - Penalty claims for failure to pay redundancy compensation, failure to respond in timely manner, and breach of mediation confidentiality denied - Costs reserved
Result: Application dismissed ; Costs reserved
Manson v X Ltd
14 Dec 2007, H Doyle, CA 151/07, (12 pages)
PRACTICE AND PROCEDURE - Respondent sought non-publication order in relation to identity - Previous employees threatened his family and business - Real risk publicity would impact on director's family - Order prohibiting publication of respondent's identity - UNJUSTIFIED DISADVANTAGE - Applicant claimed hours unilaterally reduced - Respondent submitted change only temporary - Applicant previously decided to resign but later withdrew resignation - Respondent claimed agreed to withdrawal on condition of full attendance - Although likely issue raised, Authority thought less likely clearly put forward as condition - Applicant subsequently admitted to hospital - When returned to work, director considered her too unwell to work - Rosters for following two weeks already prepared and applicant told full hours unavailable - Authority not satisfied respondent intended or told applicant hours permanently reduced - Fair and reasonable employer would have given her some certainty about rostered hours and asked for doctor's certificate fit to work if doubted ability to return - Applicant contractually entitled to 40 hours a week - Respondent deliberately decided not to change roster - Applicant unjustifiably disadvantaged when advised hours would be reduced for next two weeks - Remedies - Lost wages limited to one week as after that did not present to work - Short nature or employment and fact applicant already unhappy in employment taken into consideration - UNJUSTIFIED DISMISSAL - Constructive dismissal - Applicant left premises and did not return when advised work available - Constructive dismissal required communication that repudiatory conduct accepted and breach is reason for resignation - Authority unclear as to when applicant resigned and on what basis - Appeared hours issue not only reason for failure to return, but other reasons not communicated to respondent - Applicant's failure to present for work not sufficient in the circumstances - Hours issue raised as disadvantage claim - No subsequent actions adequate to validly cancel employment agreement - No constructive dismissal - Shop assistant
Result: Application granted (Disadvantage) ; Reimbursement of lost wages ($410)(1 week) ; Compensation for humiliation etc ($3,000) ; Application dismissed (Dismissal ) ; Orders accordingly ; Costs reserved
McLachlan v Hayward Coachlines Ltd
22 Dec 2008, R Arthur, AA 433/08, (9 pages)
UNJUSTIFIED DISADVANTAGE - Respondent employed applicant as bus driver - Applicant driving bus when involved in accident where driver of other vehicle killed - Applicant claimed treated unfairly following accident and dismissed - Applicant also sought pay owing - No health and safety plans and procedures in place to manage physical and emotional needs of drivers involved in accidents - Authority found only minimal steps taken to care for applicant following accident - Respondent checked to ensure applicant not driving beyond permitted hours and offered applicant food - Applicant not checked by ambulance staff - Authority found respondent should have arranged check-up - Found respondent gave no consideration to shock suffered by applicant after accident - Respondent reasonably expected to identify risk of traffic accidents as part of hazard identification process under Health and Safety in Employment Act 1992 - Disadvantage established - UNJUSTIFIED DISMISSAL - Redundancy - Respondent argued no bus available for applicant following accident - Respondent had told applicant that was rearranging coaches and drivers - Authority accepted evidence of applicant's friend who alleged told by respondent that applicant no longer an employee - Respondent argued spoke to applicant about lack of work but did not dismiss applicant - Authority satisfied applicant made redundant - Authority accepted genuine reasons for redundancy - Applicant's skills surplus to needs of respondent due to accident and damage to bus - However, respondent failed to consult with applicant about redundancy and alternatives - Dismissal procedurally unjustified - Remedies - Accident legislation barred any compensation as result of accident - $5000 compensation appropriate for loss of dignity and injury to feelings - PENALTY - $500 penalty awarded for failure to pay holiday pay and supply wage and time records - COSTS - Respondent to pay applicant $2070 as contribution to costs - Bus driver
Result: Application granted (Disadvantage)(Dismissal) ; Arrears of holiday pay ($1034.35) ; Compensation for humiliation etc ($5000) ; Penalty ($500)(Payable to applicant) ; Costs in favour of applicant ($2070)
McWilliams v Spectrum Care Trust Board
17 Jan 2008, R Arthur, AA 14/08, (11 pages)
UNJUSTIFIED DISADVANTAGE - Redundancy process - After co-worker left, parties discussed continuing without replacing him and applicant took on additional duties - Applicant's original role disestablished but she was not appointed to new position - Argued misled about consequences of removal of original role and prospects for future employment - Respondent submitted new role had significant additional duties and appointment of more skilled candidate justified - Applicant shortlisted for new role, but did not have meeting with CEO like external candidate - External candidate appointed after applicant withdrew application claiming restructure poorly conducted - Applicant had reasonable expectation that while formal position would disappear, role actually performing would continue, in large part the new project manager role - Held this view because roles were same or similar - Likely also view of respondent at time, or if not, it did not communicate anything different to applicant - No evidence that before respondent decided to advertise externally it considered whether applicant already doing so much of new role that she could not be said to be redundant - Lack of consideration also applied to appointment to role - Respondent did not appear to consider whether any gaps in applicant's skills could be met by training - In addition, applicant not provided with job description to enable her to address any concerns - Unjustified disadvantage suffered by the applicant not failure of respondent to offer her new position, but rather how it came to decision not to do so - Unjustified disadvantage
Result: Application granted ; Compensation for humiliation etc ($5,000) ; Costs reserved
Menelda v Publicis Mojo Ltd
19 Dec 2007, R Arthur, AA 403/07, (19 pages)
UNJUSTIFIED DISADVANTAGE - Applicant alleged respondent breached duty to keep her safe from harm by failing to properly deal with bullying by client which led to nervous breakdown - Respondent accepted applicant raised issues about client but claimed it dealt with them and breakdown not foreseeable - Applicant employed specifically to deal with key client - Two years into role indicated felt stressed by client and wanted to resign - Parties agreed applicant would take leave at health resort with respondent contributing to expenses - No further complaints from applicant, but six months later applicant advised would no longer work for client - Agreed to continue while respondent looked at alternative roles - Other staff appointed to work on client account with applicant - Applicant had "meltdown" after client meeting and visited doctor - Diagnosed with stress and anxiety due to work - Evidence did not support conclusion client's behaviour bullying - However, clear applicant felt under considerable strain - Respondent's response to applicant's attempted resignations showed it provided reasonable level of support and responsiveness - No breach of duty - Obiter comment harm not foreseeable - Doctor's diagnosis resulted from applicant's self reporting - Not sufficient for Authority to determine respondent's actions caused ill health - No unjustified disadvantage - UNJUSTIFIED DISMISSAL - Medical grounds - Applicant dismissed after five month absence due to illness - Respondent submitted employment terminated when applicant's doctor advised she was permanently unable to return to work - Steps to terminate employment relationship reasonable in light of medical evidence available to it - Dismissal justified - Advertising account director
Result: Application dismissed ; Costs reserved
Nelson v Fletcher Steel Ltd
10 Dec 2007, J Wilson, AA 387/07, (33 pages)
UNJUSTIFIED DISADVANTAGE - Authority found respondent did not misled applicant or act in bad faith when hiring him - Applicant also alleged breach of duty of care as overworked and had unreasonable demands placed on him resulting in stress related illness - Raised matters with respondent as personal grievance and claimed it handled things unfairly causing further disadvantage - Although applicant under stress during employment, on balance level of stress not extraordinary - Respondent appropriately addressed concerns brought to its attention - No breach of duty to provide safe workplace - No evidence stress caused heart disease - No breach of good faith in way first grievance investigated - UNJUSTIFIED DISMISSAL - Applicant subsequently dismissed on grounds of medical incapacity - Parties had agreed to gradual return to work after applicant underwent surgery - Applicant advised unable to work at full capacity and situation could continue for further six months - Respondent considered employment agreement frustrated - No evidence ongoing personal grievance influenced decision to dismiss - However, decision made quickly and without giving applicant proper opportunity to comment - Dismissal unjustified - Remedies - Medical condition meant applicant would not have been receiving full salary - Also dismissal probable if respondent followed correct procedures - Lost wages limited accordingly
Result: Application granted (Dismissal) ; Reimbursement of lost wages (Half of one month's wages) ; Compensation for humiliation etc ($7,500) ; Costs reserved
Pryor v Norske Skog Tasman
5 Dec 2007, R A Monaghan, AA 384/07, (20 pages)
UNJUSTIFIED DISADVANTAGE - Applicant union site delegate - Claimed warnings issued to him because of union activities - First warning related to co-worker working overtime - Manager sought to have co-worker stay on but applicant instructed him to go home - Applicant felt respondent taking advantage of employees who felt unable to decline requests to work - Authority did not accept concern well-founded and did not excuse applicant's behaviour - Manager complained about applicant's - Investigation resulted in written warning - Applicant not merely disagreeing with manager but deliberately defied him - First warning justified - Second warning result of applicant following union secretary's direction to shut down plant machinery as machine supervisor unavailable - Respondent had instructed him to keep machine running - Behaviour considered serious misconduct and final warning issued - Warning influenced by respondent's incorrect conclusion applicant's safety concern not genuine, although conclusion affected by applicant's poor communication and aggravated by failure to observe obligation to consult before shutdown - Element of wilful disobedience in shutdown, but nature and extent of culpability rested on different grounds from those found by respondent - Conversations at time indicated circumstances not as straightforward as mere refusal to obey instruction - Fair and reasonable employer would have taken this into account - Unjustified disadvantage - Remedies - Circumstances did not call for remedy - Alternatives to shutdown should have been discussed before shutdown - Substantial contribution - DISCRIMINATION - Warnings not issued because of union activities - No discrimination - Machine tender
Result: Application granted in part ; Costs reserved
Rochford v Victoria University of Wellington
21 Dec 2007, P R Stapp, WA 178/07, (14 pages)
UNJUSTIFIED DISADVANTAGE - Applicant alleged respondent breached good faith and failed to consult him when removed his authority to hire casual staff - Operations Manager appointed to improve service delivery - Despite assurances his position would not change, applicant felt responsibilities being removed - Respondent contended Operations Manager merely taking more involved approach than previous manager - Whether grievance raised within 90 days - No doubt applicant raised employment relationship problem, but not same as raising personal grievance - Authority considered applicant raised a personal grievance that unmistakably made it reasonably clear what respondent being asked to address - However, employment relationship problem made more difficult by lack of specificity regarding what events applicant considered lacked consultation - Evidence did not support allegation Operations Manager hired as part of "set up" - Applicant's role description did not refer to hiring staff - Had assumed role under previous manager but could not anticipate would continue given new approach to operations - Issue relating to budget responsibilities not raised within 90 days, and Authority not satisfied applicant's role included budget decision making - Annual leave issue not specified for respondent, but process unchanged anyway - Other issues raised by applicant not supported - Changes applicant opposed within respondent's right to mange - No unjustified disadvantage - Respondent admitted made mistake calling applicant to meeting to which he required lawyer - Respondent offered to pay legal costs incurred because of meeting - Matter remained open for parties to resolve - Mailroom Supervisor
Result: Application dismissed ; Costs reserved
Sminchisescu v Five Star Distribution Ltd
13 Dec 2007, R A Monaghan, AA 392/07, (21 pages)
UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Misconduct - Applicant dismissed for returning to workplace in breach of instruction not to - Incident involving staff applicant responsible for taking beer from damaged delivery - Manager began to investigate matter - Applicant suspended on pay and told not come on site until matter resolved - Later given permission to return and collect personal property, but issue arose over whether took work documents or tried to influence people involved in investigation - Respondent considered applicant removed incident report - Disciplinary meeting held regarding serious misconduct - Unclear whether misconduct referred to removal of beer or paperwork - Grounds not made clear until end of meeting when told related to failure to follow instructions - Applicant dismissed - Circumstances relating to applicant's conduct over beer incident not unusual and did not warrant suspension - Unjustified disadvantage - Difficult for respondent to justify dismissal for failure to follow instruction associated with unjustified suspension - Overall applicant's conduct not properly investigated and dismissal profoundly flawed - Respondent not entitled to reach conclusion it did - Dismissal unjustified - Remedies - In absence of properly completed investigation respondent could not rely on any loss of trust and confidence arising out of matters - Although at times applicant behaved in underhanded way, conduct not serious enough to base finding should not be reinstated - Supervisor
Result: Application granted ; Reimbursement of lost wages (Quantum to be determined) ; Compensation for humiliation etc ($2,000)(Disadvantage) ; ($3,000) (Dismissal) ; Reinstatement ordered ; Costs reserved
Stevens v Sticky Fingers 2006 Ltd
18 Dec 2007, J Crichton, CA 155/07, (10 pages)
UNJUSTIFIED DISMISSAL - UNJUSTIFIED DISADVANTAGE - Misconduct - Applicant involved in altercation with manager - Suspended pending disciplinary investigation and then dismissed for abusive behaviour and failure to follow reasonable instruction - Applicant previously involved in altercation with same manager - Lack of resolution led to second confrontation - Respondent's evidence preferred - Applicant refused reasonable instruction not to persevere with discussion in front of customers and staff but to continue it during work hours - Reasonable for respondent to prefer witness accounts to video surveillance tape in circumstances - Overall process adopted by respondent fair - Although applicant unable to comment on decision to suspend him prior to investigation it was course of action available and appropriate in circumstances - Failure to seek input into decision no more than technical breach - Substantive conclusions as to applicant's behaviour and insubordination reasonable - No disadvantage - Dismissal justified - Bar manager
Result: Application dismissed ; Costs reserved
Taylor v Idea Services Ltd
22 Dec 2008, R Arthur, AA 431/08, (12 pages)
UNJUSTIFIED DISMISSAL - Constructive dismissal - Applicant claimed forced to resign as respondent failed to take proper safety measures to protect her from assaults by client - Also claimed unfairly accused of incorrectly administering medication - Applicant claimed distress caused by incidents resulted in miscarriage - Applicant employed to care for respondent's clients who were intellectually disabled - Applicant assaulted by client and required medical attention - Respondent responded with full range of post-assault care and staff de-briefing - Applicant indicated willingness to continue to work with client - Applicant assaulted again by client - Respondent concerned client would continue to assault applicant so applicant redeployed to alternative work site - Authority satisfied events did not disclose breach by respondent to take reasonably practicable, proportionate, measures to ensure applicant's safety at work, and that respondent took reasonable care to avoid unnecessary risk - Authority found evidence did not support assertion miscarriage caused by client assaults - Applicant felt uncomfortable at alternative work site and asked to be transferred - Found applicant's transfer to alternative site at short notice not breach of respondent's safe worksite duties - Incident occurred where appeared client mistakenly given double dose of medication - Applicant believed being blamed for error - Before investigation concluded applicant's representative informed respondent that applicant not well enough to work - Applicant accepted respondent entitled to investigate incident - Authority found respondent's investigation into incident did not amount to breaches of duty to treat applicant fairly and ensure her safety at work - Authority found respondent's administrative oversight in not providing incident report to ACC did not amount to breach of duty by respondent - Applicant resigned via representative - Respondent decided would not accept resignation until met with applicant's representative - Respondent declined to pay applicant's final pay - Respondent argued had no written authority from representative to represent applicant and did not consider had received genuine resignation - Authority found respondent had previously accepted representative's authority to act for applicant and that respondent knew applicant had resigned - Found respondent's response to resignation and request for final pay not consistent with good faith obligations - Respondent's stance cynical and ill-advised - However, Authority found applicant not forced to resign - No constructive dismissal - UNJUSTIFIED DISADVANTAGE - Authority found respondent's actions regarding applicant's final pay and status of representative where breaches of good faith - Breaches amounted to unjustified disadvantage - Remedies - $2,000 compensation appropriate - Community Support Worker
Result: Application dismissed (Dismissal) ; Application granted (Disadvantage) ; Compensation for humiliation etc ($2000) ; Costs reserved
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