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Atley v Southland District Health Board
19 Dec 2008, P Cheyne, CA 197/08, (3 pages)
APPLICATION FOR REMOVAL TO EMPLOYMENT COURT - Applicant alleged unjustified disadvantage and discrimination due to disability - Claimed questions would arise under Human Rights Act 1993 ("HRA") - Authority found discrimination claims under HRA were for institutions established under HRA, not Authority - However, unlawful discrimination allegation also effectively raised personal grievance claim as defined in s103(1)(a) ERA - Authority not aware of proceedings under HRA so found applicant must be taken to have selected Authority's jurisdiction - Authority found s22 HRA not relevant as s104 ERA exhaustively defined discrimination, and applicant selected Authority's jurisdiction - Found question of whether respondent breached s104 ERA was mixed question of fact and law but did not raise important question of law - Application of s29 and s35 HRA also mixed question of fact and law involving consideration of reasonable expectations or impositions on respondent in circumstances, not giving rise to important questions of law - Authority noted not for Authority, nor Court on removal, to answer applicant's hypothetical questions which did not arise from facts of grievance - Found whether applicant had obligation to disclose disability prior to employment or transfer was mixed question of fact and law and arose incidentally as may be relevant to remedies if grievance established - No grounds established to enable matter to be removed to Court - Investigation meeting to be arranged - Nurse
Result: Application dismissed ; Costs reserved
Busch v Zion Wildlife Gardens Ltd and Anor
9 Dec 2008, Y S Oldfield, AA 415/08, (12 pages)
PRACTICE AND PROCDURE - Identity of employer - Respondents argued second respondent should be removed from proceedings - Authority declined to remove second respondent until full hearing of relevant evidence as to applicant's correct employer - Parties previously applied to restrict publication of proceedings - In Minute, Authority declined TVNZ request to film substantive proceedings - Parties made submissions regarding discretion to limit publication in relation to interlocutory applications - Authority excluded press from interim reinstatement investigation meeting, treating it as being in nature of chambers meeting - INJUNCTION - Application for interim reinstatement - Applicant suspended while respondent conducted investigation into allegations of serious misconduct - Applicant declined to attend disciplinary meeting - Respondent dismissed applicant for serious misconduct, effective immediately - Authority satisfied that substantive and procedural issues raised by applicant gave rise to arguable case - Authority also considered applicant met threshold of tenable arguable case for permanent reinstatement as remedy - In balance of inconvenience, Authority found applicant unable to take up former duties or care for animals unless regained licence from MAF - Found conflict would likely ensue if applicant reinstated, causing major disruption to respondents - Applicant not suffering financial hardship as in receipt of earnings related compensation for injury - Reinstatement of no practical effect while applicant continued to be unfit for work - Authority considered respondents' obligations to staff who stated could not work with applicant - Respondents offered to pay for alternative accommodation if required applicant to leave on-site accommodation - Balance of convenience favoured respondents - Applicant argued overall justice of case favoured applicant as had little chance of finding alternative employment and was concerned about welfare of animals - Authority found welfare of animals matter for MAF, not Authority - Not certain when applicant would be fit to work regardless - Garden leave would not address applicant's desire to work with animals - Authority did not consider injustice would done by requiring applicant to wait for short time remaining until full investigation completed - Application for interim reinstatement declined - Wildlife park operator
Result: Application dismissed (interim reinstatement) ; 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
Coates v Aerocool Ltd
17 Jan 2008, D King, AA 11/08, (6 pages)
PRACTICE AND PROCEDURE - Whether personal grievance raised within 90 days - Disadvantage claim clearly not raised within 90 days and taken no further by Authority - UNJUSTIFIED DISMISSAL - Constructive dismissal - Respondent planned restructuring - Initially indicated intention to disestablished applicant's position but later advised restructuring of put on hold and applicant could continue in current position until proposal reactivated - Applicant considered lack of certainty regarding employment meant no option but to resign - Respondent followed fair and proper consultation process - Applicant's resignation not caused by breach of duty by respondent - No constructive dismissal - Financial officer
Result: Application dismissed ; Costs reserved
Edmonds v Te Kura Kaupapa Motuhake O Tawhiuau
19 Dec 2007, J Scott, AA 401/07, (10 pages)
PRACTICE AND PROCEDURE - Applicant sought declaration personal grievance raised by union representative - Respondent's representative claimed he asked for further details during initial phone call as did not understand nature of complaint - On receipt of writing submission respondent agreed to mediation but considered nature of grievance still not appropriately set out - Authority satisfied personal grievance raised with sufficient detail during initial phone call - Applicant's representative had referred to alleged breaches of specific clauses of employment agreement dealing with discipline and dismissal procedures - Sufficient, in itself, to advise respondent that applicant did not think dismissal conducted in accordance with disciplinary procedures - Respondent also argued union not applicant's properly appointed agent - Authority suggested union provide respondent with copy of authorisation to act for applicant - Leave reserved for respondent to clarify any concerns regarding union's right to represent applicant
Result: Orders accordingly ; Costs reserved
Johnson v New Zealand Racing Board
16 Jan 2008, P Cheyne, CA 4/08, (5 pages)
PRACTICE AND PROCEDURE - Application for removal to Employment Court - Respondent did not consent to or oppose application - Phone conference held after applicant lodged statement of problem - Both Authority and respondent raised issue about adequacy of statement of problem - Applicant appeared to think Authority and respondent had colluded and asked for different Authority Member to be assigned - No collusion and no basis for Member to recuse themselves - Applicant complained to Office of Ombudsmen and alerted to right to apply for removal - No important question of law or public interest requiring removal - In all circumstances, Authority investigation more appropriate as would help clarify applicant's problem - Application declined
Result: Application dismissed ; Costs reserved
Katterns v Attorney-General in respect of the Chief Executive of the Ministry of Social Development
7 Jan 2009, D Asher, WA 1/09, (5 pages)
PRACTICE AND PROCEDURE - Preliminary determination regarding proposed amendment to statement of problem, amending remedy sought to that of reinstatement - Respondent opposed late amendment - Relationship problem had extended history - Authority found any disadvantage to respondent as result of late amendment to remedies sought curable by further investigation - Found respondent entitled to know what case it had to meet and present evidence and submissions accordingly - Found investigation not concluded, particularly as respondent had not accepted Authority's draft findings in earlier memorandum - Authority noted applicant could file matter as new grievance regardless, subject to 90-day constraint - Also noted that impact of late amendment could be addressed in costs submissions - Authority expressed preliminary view that not clear how discretionary remedy of reinstatement could be exercised in applicant's favour so long after and so far outside of precipitating event - Preliminary view favoured monetary award - Authority noted was in parties' interests to settle on own terms as was ongoing employment relationship - Telephone conference required to schedule filing of amended statement in reply and further documents
Result: Application granted
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
Timmo v Old Panelrok Ltd
23 Jan 2008, Y S Oldfield, AA 21/08, (7 pages)
PRACTICE AND PROCEDURE - Identity of employer - Shortly after applicant began work person who engaged him (DT) passed away - Applicant advised by business associates of DT there was no longer a job for him and ceased work immediately - Applicant advised of vacancy by WINZ - Met with DT and started work in factory operated by company co-owned by DT - Other co-owner a director and shareholder of other companies, including respondent - Administrator claimed when applicant hired was told by DT would not be employed by company and he would sort out payment of wages - Business associates understood DT hired applicant personally as planning new business arrangement - Respondent not applicant's employer - Uncontested evidence it never operated business let alone hired staff - Claims against it dismissed - Authority accepted DT employed applicant personally - Authority minute detailing origin of identity issue and witness summons attached - Factory worker
Result: Orders accordingly ; No order for costs
Wilson-Busing & Ors v New Zealand Public Service Association
4 Feb 2008, J Scott, AA 30/08, (5 pages)
PRACTICE AND PROCEDURE - Applicants claimed respondent breached duty of good faith by changing National Terms of Service ("NTS") after ratification by including Health Promotion Officers ("HPO") without three year degrees in Community Health Workers ("CHW") scale - Applicant's employer included negotiated conditions of NTS into Multi Employer Collective Agreement ("MECA") which covered applicants - Applicant's claim contrary to previous situation under CEA where Health Promotion workers covered under Health Education Officers' scale and where all HPOs covered by separate scale ("Allied scale") - Also claimed changes inconsistent with NTS and changes not put to workers for approval - Applicants claimed lost value of incremental movement available if had remained on Allied scale - Authority advised applicant that number of remedies sought not available - Authority advised that action available for penalty for breaches of s4(1) ERA in relation to changes made to NTS in subsequent negotiations to translate terms into new MECA - Respondent argued claim for penalty out of time - Respondent argued applicants knew or should have known about cause of action when delegates received copy of MECA on 26 April 2006 - Respondent claimed therefore last date for filing action in Authority was 25 April 2007 - Respondent argued claim out of time because not filed until 30 April 2007 therefore outside twelve month period - Applicants submitted claim received by Authority on 23 April 2007 but claim subsequently returned because documentation incomplete - Applicant filed claim again and asked Authority to accept claim as filed on 23 April 2007 - Authority had documentation that stated claim filed on 30 April 2007, however copy of statement of problem also held on file with 23 April 2007 date - Authority found alleged breach of good faith could not have become clear to applicants until at the earliest late May 2006 therefore application filed within 12 month timeframe in s135(5) ERA - Application filed in time
Result: Orders accordingly ; Costs reserved
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