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Baker v Clenford Services Ltd
9 Nov 2006, RA Monaghan, AA 343/06, (5 pages)
UNJUSTIFIED DISADVANTAGE - Applicant alleged unjustifiably disadvantaged by demotion - Applicant had agreed to variation - Authority did not accept any bullying or intimidation by respondent - No unjustified disadvantage - UNJUSTIFIED DISMISSAL - Serious misconduct - Applicant dismissed after arguing with another employee in store - Principal submission regarding lack of substantive justification rested on applicant's evidence about pronunciation of swear word - Authority did not accept evidence or that explanation given to respondent - Also submitted not language that could cause offence - Word used not at foul end of scale, although not one customer service employee should use in hearing of customers - Circumstances in which used relevant - Word used in public part of store, in hearing of customers, by someone who had recently been in management position and remained supervisor - Not acceptable - Might have called for lesser sanction if were mitigating circumstances - However, no provocation to justify response - Also, applicant not model employee, rather had history of performance problems - Substantive grounds to dismiss - While applicant should have had opportunity to respond to other employee's account of event, failure did not vitiate dismissal - Differences in detail not material and did not affect conclusion respondent reached about applicant's conduct - Dismissal procedure not so flawed as to render dismissal unjustified - Dismissal justified - Length of service seven months before alleged disadvantage, one year five months until dismissal - Checkout supervisor
Result: Application dismissed ; Costs reserved
Beamsley v AFFCO New Zealand Ltd
11 Oct 2006, PR Stapp, WA 138/06, (6 pages)
UNJUSTIFIED DISADVANTAGE - Applicant undertook union duties full time - Alleged disadvantaged when respondent unilaterally changed employment arrangement and required him to start productive duties - Sought reinstatement to full-time union role - Interim arrangement between parties preserved status quo - Applicant relied on memorandum stating full-time union representation arrangement in place for his tenure as secretary - Whether company entitled to vary arrangement without applicants agreement - Memorandum represented terms for applicant's employment - Respondent made decision without consultation - Not a redundancy situation because role of Union Secretary remained and respondent had not linked cost efficiencies to applicant's previous position - Decision to require applicant to report to productive duties or not be paid unjustified, and breached terms and conditions of employment - Breach of good faith as failed to follow due process - Applicant to continue to be paid full time as Union Secretary -Parties directed to make interim arrangements permanent - Leave reserved for compliance order if necessary - Union Secretary
Result: Application granted ; Costs reserved ; Orders accordingly
Clarkson v B Barns, T Barns & R Barns t/a Barns Partnership
2 Nov 2006, J Crichton, CA 151/06, (3 pages)
UNJUSTIFIED DISADVANTAGE - Applicant alleged unjustifiably disadvantaged by not being able to work out notice and by underpayment of wages and allowances - Investigation meeting conducted on basis of separate interviews with each party - Applicant provided with material assembled by respondent, but chose not to make submissions on it - Material disclosed applicant overpaid - Respondent claimed had determined not to press applicant for reimbursement before receiving notice of statement of problem - Applicant accepted paid correct salary - Respondent admitted wet weather allowance not paid but amount owing greatly exceeded by overpayments - In absence of submission finding fault with respondent's calculations, applicant's claim failed in entirety
Result: Application dismissed ; Costs to lie where they fall
Crooks v Pratt & Whitney Air New Zealand Services
2 Apr 2007, H Doyle, CA 35/07, (12 pages)
UNJUSTIFIED DISADVANTAGE - Applicant had sexual relationship with 14 year old daughter of co-worker ("Z") - Arrested and returned to work after released on bail - Respondent realised likely staff may take view applicant guilty and make views known to him - Told employees not to harass applicant and he was innocent until proven otherwise - Applicant returned to work - Alleged disadvantaged by respondent's actions following incidents involving other employees - Applicant pleaded guilty and applied for sentence deferral - Court indicated deferral possible if imprisonment meant applicant likely to be dismissed - Respondent did not confirm would be dismissed - Applicant imprisoned then dismissed - Authority found fair and reasonable employer would not have done anything to influence sentencing - Justified in refusing to confirm dismissal likely until knew outcome of sentencing - None of respondent's actions unjustified - No disadvantage - UNJUSTIFIED DISMISSAL - Misconduct - Under disciplinary policy, respondent entitled to consider continued employment having regard to its reputation, responsibilities of applicant, nature of offence and other relevant factors - Applicant claimed conviction had no bearing on position and no effect on respondent's reputation - Authority did not accept because conduct occurred outside work could not amount to misconduct - Respondent entitled to consider continued employment when employee guilty of criminal offence at work or off duty - Publicity impacted on respondent's reputation - Fair and reasonable employer entitled to conclude sentencing meant applicant could not fulfil employment obligations, even taking into account possibility of home detention and leave - Applicant's actions caused him to be placed in position where could not perform obligations - Also entitled to conclude circumstances (including nature of conviction and publication of sentencing) meant foundation of trust and confidence significantly undermined - Dismissal substantively justified - Respondent visited applicant in prison and left dismissal letter with officials - Fair and reasonable employer would have written to applicant prior to visit advising dismissal considered - Meeting could have been opportunity to explain or mitigate conduct - On that basis, dismissal unjustified - However, even with fair process, outcome would have been same - Remedies - Blameworthy conduct so significant not entitled to remedies, save as to reasonable contribution to costs - Contributory conduct 100 percent - PRACTICE AND PROCDURE - Publication of names of daughter, Z, and other employee prohibited - Publication of emails between Z's union and respondent also prohibited - Length of service 15 years and three months with respondent and its predecessor - Aircraft engineer
Result: Application dismissed (Unjustified disadvantage) ; Application granted (Unjustified dismissal) ; Orders accordingly ; Costs reserved
Dr Y v Bay of Plenty District Health Board
27 Apr 2007, R Arthur, AA 128/07, (16 pages)
UNJUSTIFIED DISADVANTAGE - Applicant treated patient ("A") at respondent - After A declared feelings for applicant, A discharged to GP's care - Respondent investigated applicant's management of A's care after she committed suicide - Claimed disadvantaged by investigation and placement on garden leave - Whether full and fair investigation - By considering disciplinary action solely on circumstances of A's case, and not other patients, respondent did not fail to fully investigate - Applicant not told of recommendation he be dismissed for serious misconduct - Potential procedural error remedied by agreement serious misconduct conclusion was in relation to clinical issues, not employment - Review conducted properly and not, as applicant claimed, as part of campaign to undermine him - Applicant agreed to garden leave - Unjustified suspension claim failed - Force in argument matter took too long to resolve, but delay not solely respondent's responsibility - No unjustified disadvantage - UNJUSTIFIED DISMISSAL - Whether investigation disclosed conduct capable of being serious misconduct - Investigation found applicant failed to recognise A's emotional attachment and develop risk management plan - Concluded applicant's practice seriously threatened A's wellbeing - Provision of regular professional supervision relevant to whether actions serious misconduct in circumstances - Evidence supported view applicant resisted supervision - Despite knowledge of A's situation, applicant arranged for news of clinician change to be made by GP - Risk not adequately managed by applicant - A's medical file lacked proper diagnosis and documentation - Sufficient to raise significant concerns - Oram (cited below) standard applied - Respondent could reasonably conclude inadequacies in management of A's care amounted to misconduct of sufficient gravity to deeply impair basic trust and confidence - Entitled to dismiss for serious misconduct - Outcome may have been different under s103A Employment Relations Act 2000 test - Dismissal justified - PRACTICE AND PROCEDURE - Applicant's details (apart from gender and occupation) subject to non-publication order - A's and other patients' details also subject to order - Application for non-publication of respondent's name declined in public interest - Length of service 11 years - Psychiatrist
Result: Application dismissed (Unjustified disadvantage, unjustified dismissal) ; Application granted (Non-publication order) ; Orders accordingly ; Costs reserved
Fletcher v Chief Executive, Statistics New Zealand
10 Nov 2006, J Wilson, CA 153/06, (9 pages)
UNJUSTIFIED DISADVANTAGE - Applicant claimed unjustifiably disadvantaged by respondent not properly recognising role as union delegate when carried out salary and performance review, and when decided eligibility for "key staff allowances" ("KSA") - Applicant claimed union activities came under expired collective employment agreement ("CEA") - Disingenuous for respondent to suggest CEA unenforceable - Even if technically correct that CEA expired, argument ignored fact applicant not discouraged from undertaking delegate role or advised it did not apply - In evidence respondent did not argue relationship did not apply, instead said delegate duties taken into account - In year of review applicant had spent approximately 39 percent of his time on union activities - Respondent accepted union duties should be given equal weighting with other duties - Applicant unsuccessfully appealed review which gave him overall "meets standards" performance rating and $2,500 pay increase - Review considered proper weight given to union involvement - Authority satisfied review carried out fairly - Performance assessment a matter for employer and unless evidence assessment carried out unfairly Authority could not substitute its view for employer's - Respondent followed proper process and came to justifiable conclusion applicant remunerated at appropriate level - Respondent made one-off KSA payments to retain staff - Applicant did not receive KSA but believed fitted eligibility criteria - Discussion with manager led him to believe union activities not considered - Applicant's remuneration set out in employment agreement - Nothing in it which required payment of KSA and payment was at respondent's discretion - Criteria developed by respondent not unreasonable and no evidence unfairly applied or that applicant unfairly discriminated against - No unjustified disadvantage - Commented events outlined by applicant caused him good deal of personal stress - Authority had no doubt respondent and union took advantage of applicant's willingness to contribute time and energy to relationship between them - Strongly recommended respondent and union review and clarify mutual understanding of role of delegates and value of contributions to ensure situation did not recur - Length of service before alleged disadvantage 18 years - Adviser
Result: Application dismissed ; Costs reserved
Lally v The Vice-Chancellor Victoria University of Wellington
18 Oct 2006, D Asher, WA 140/06, (14 pages)
UNJUSTIFIED DISADVANTAGE - Misconduct - Applicant copied email criticising disciplinary process to contacts in email address book - Parties reached prior mediated settlement to attempt to resolve disputes internally - Applicant instructed not to disclose university matters to staff or external contacts - Applicant copied subsequent correspondence to all contacts - Respondent concluded behaviour misconduct and issued 12 month formal warning/instruction against repetition of such conduct - Authority found instruction not lawful - Without prior investigation, not fairly and reasonably open to respondent to conclude copying of email unreasonable, unjustified, or that applicant motivated by intention to bring respondent into disrepute and had not first given respondent opportunity to respond - Also not able to conclude applicant breached duty of good faith and fidelity - Warning unjustified - Subsequent disciplinary findings set aside since relied on unjustifiable instruction - Unjustified disadvantage - Applicant's conduct gratuitous, non-constructive and not an exercise of "academic freedom" - Conduct fell short of good faith requirements - Would have found 100 percent contributory conduct had remedy been sought - Length of service 16 years until grievance - Associate professor
Result: Application granted ; Costs reserved
Lambert v Ericsson Communications Ltd
9 Aug 2006, GJ Wood, WA 113/06, (10 pages)
UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Redundancy - Applicant put on fixed term assignment in Malaysia - While on assignment offered position with respondent's Swedish division only if respondent agreed to extend applicant's assignment, or applicant took position locally in Sweden - Respondent declined to extend assignment - Applicant did not accept local position - Made redundant and paid in lieu of notice - Authority found redundancy information only by email and phone contact sufficient in circumstances - However, not open to pay in lieu of notice, as no provision for it in employment agreement - Unreasonable notice - Unjustified disadvantage - Open to respondent to refuse assignment extension - Treated applicant as fair and reasonable employer would have while effecting dismissal - Redundancy inevitable - Dismissal justified - Remedies - Actions in relation to payment in lieu had no negative impact on applicant, only hurt was lost remuneration - PENALTY - Claimed misled about assignment policies in breach of good faith - Applicant not misled - No breach - In any event, any breach not sustained or intended to undermine employment agreement - ARREARS OF WAGES AND HOLIDAY PAY - Claimed should have been paid redundancy compensation and holiday pay at level of assignment salary - For purpose of redundancy termination was open to respondent, and was fair and reasonable, to set salary upon repatriation at level based on position prior to assignment - However, holiday pay to be calculated on Malaysian assignment salary in accordance with Holidays Act 2003 - Interest 6 percent - Length of service five years - Information systems manager
Result: Application dismissed (Unjustified dismissal, penalty) ; Application granted (Unjustified disadvantage) ; Arrears of wages (notice period) ; Arrears of holiday pay (Quantum to be determined) ; Interest (6 percent) ; Costs reserved
O'Donnell v Christian Healthcare Trust
31 Oct 2006, YS Oldfield, AA 332/06, (3 pages)
UNJUSTIFIED DISADVANTAGE - Applicant claimed disadvantaged by written warning - Respondent denied warning unjustified - Claimed insufficient evidence of disadvantage, given applicant resigned soon after - Chief executive witnessed applicant refusing to allow wife of prospective client to look at retirement home premises by herself - Refused on basis against residents' safety and privacy policy - Called to meeting - Not told meeting disciplinary - Follow-up on warning delayed - Authority found applicant went to meeting unprepared and not represented - Ability to respond to charges impeded - Cast doubt on grounds justifying warning - In absence of fair process, warning not substantively justified - Process leading to warning fundamentally flawed - Warning caused applicant to lose trust and confidence in respondent - Found warning distressing as in over 40 years in nursing had never received warning - Made final months of employment ordeal - Shock and hurt compounded by long and exemplary work history - Warning changed work environment - Unjustified disadvantage - Length of service not specified - Retirement nurse
Result: Application granted ; Compensation for humiliation etc ($500) ; Costs reserved
Palmer v RNJ's Ltd
8 Nov 2006, V Campbell, AA 342/06, (6 pages)
UNJUSTIFIED DISMISSAL - UNJUSTIFIED DISADVANTAGE - Redundancy - Respondent's new business experienced real and significant downturn - After consultation, fair and reasonable employer would have concluded necessary to disestablish applicant's position and replace it with position with reduced hours - Applicant given letter with two options, accept reduced hours and work alone, or redundancy - Respondent had no problem with shop being closed for breaks - Applicant concerned if worked alone would work 40 hour week without breaks, but issue not raised with respondent - Respondent claimed prepared to discuss matter but applicant led him to believe letter not opened - Applicant left with impression had been advised of changes rather than consulted - Failure to discuss alternatives to redundancy, provide further information regarding required reductions, or give opportunity to discuss matter breached applicant's employment agreement and s4 Employment Relations Act 2000 - Genuine redundancy so was unjustified disadvantage, not unjustified dismissal - Remedies - Applicant did not take opportunity to discuss letter with respondent, but was not conduct that contributed to personal grievance - Although neither party represented at investigation meeting, correspondence indicated applicant had received legal advice - Length of service three months one week - Manager
Result: Application dismissed (Unjustified dismissal) ; Application granted (Unjustified disadvantage) ; Compensation for humiliation etc ($2,500) ; Costs reserved
Watt v Canterbury District Health Board
11 Aug 2006, P Cheyne, CA 122/06, (17 pages)
UNJUSTIFIED DISADVANTAGE - Alleged bullying and "mobbing" behaviour by colleagues Applicant removed from "family therapy team" ("FTT") - Prior unsuccessful grievance concerning non-appointment to manager position - Estopped from asserting historical bullying claims dealt with in earlier determination - Being prevented from involvement in FTT by removal, and other roles, would have made work significantly less satisfying - Loss of work, even if restored after six months, disadvantaged applicant - Managers should have canvassed feelings of mistrust with applicant before removed him from FTT - Unjustified disadvantage - UNJUSTIFIED DISMISSAL - Dismissed for serious incompatibility - Conflict created significant barrier to performance of many of applicant's duties - Applicant's belief in truth of historical bullying claims powerful factor in explaining his behaviour - Failure to conduct himself with colleagues on basis historical claims wrong largely caused conflict - No evidence dismissal pre-determined or respondent withheld redeployment options - Dismissal justified - BREACH OF CONTRACT - No evidence applicant's career development suffered - Colleagues' refusal to work with applicant not breach of trust and confidence or any express term of employment - Clause in collective agreement required respondent to treat applicant fairly, properly and openly - Concerns causing respondent to remove applicant from FTT not put to him - Removal without consent express or implied breach - Disadvantage finding also amounted to breach of express and implied terms of employment agreement - Remedies - No pecuniary loss caused by breaches - Could not be double recovery of compensation and damages for same incident - Breach not material cause of irreconcilable conflict that resulted in dismissal, nor did it contribute in material way to applicant's stress, leading to three months of sick leave - Length of service 21 years with respondent and its predecessors - Psychiatric nurse
Result: Application granted (Unjustified disadvantage, breach of contract) ; Damages ($5,000 for two breaches) ; Application dismissed (Unjustified dismissal) ; Costs reserved
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