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Geen v The Commissioner of Police
17 Jul 2006, A Dumbleton, AA 241/06, (12 pages)
UNJUSTIFIED DISADVANTAGE - Applicant on sick leave - Had developed medical condition preventing keyboard use, which was essential to her position - Respondent sent letter advising sick leave entitlement exhausted - Applicant claimed compelled to return to work - Injured at work in accident - Could have happened to her, or any employee, any time - Not compelled to return to work by letter, and no causal link between this and injury - Letter necessary under collective employment agreement ("CEA") - Applicant not offered alternative position which involved keyboard use - Respondent discharged obligation to consider suitable redeployment opportunities - No unjustified action in any of above - No disadvantage - UNJUSTIFIED DISMISSAL - Medical retirement - CEA had termination clause allowing respondent to cry halt to employment relationship with injured employee - Fair and reasonable employer would not have dismissed without giving access to information relevant to continuation of employment, or without giving opportunity to comment - Breached s4(1A) Employment Relations Act 2000 duty of good faith - Statutory, contractual and judicial principles of procedural fairness breached - Remedies - Likely still would have been medically retired had respondent acted in good faith - No loss as reasonable alternative positions not acceptable to applicant - ARREARS OF HOLIDAY PAY - Claimed should have been paid sick leave while on holiday - Appropriate to deduct annual leave as leave taken for purpose of holiday - No holiday pay owing - Length of service 18 years - Dispatcher
Result: Application dismissed (Unjustified disadvantage, arrears of holiday pay) ; Application granted (Unjustified dismissal) ; Reimbursement of lost wages (three months) ; Compensation for humiliation etc ($4,000) ; Costs reserved
Hand v McCrostie Builders
25 Jul 2006, P Montgomery, CA 109/06, (7 pages)
UNJUSTIFIED DISMISSAL - Constructive dismissal - Sexual harassment - Applicant resigned as believed respondent not dealing with complaints - Alleged sexually harassed by another employee, SH - Respondent claimed complaints investigated and after first incident SH warned would be dismissed if behaviour continued - Second incident involved SH staring at applicant - SH verbally warned - SH later complained about applicant and both were suspended - Failure of employer to perceive actions were of sexual nature simply extraordinary - Treating staring as discrete from primary incidents serious error of judgement, it fell squarely under s118 Employment Relations Act 2000 - SH's behaviour sexual harassment - Respondent's investigation process not full and sufficiently robust to uncover relevant facts - Reliance solely on corroborated observations and refusal to accord credence to applicant's account fell well short of obligations - Steps taken to prevent further offensive behaviour poorly conceived and executed - Suspension without contractual right unlawful - Constructive dismissal - Respondent commended for supporting counselling for SH - Length of service 11½ months - Painter
Result: Application granted ; Reimbursement of lost wages ($1,950) ; Compensation for humiliation etc ($10,000) ; Costs reserved
Hodges v Total Distribution Ltd
24 Jul 2006, D King, AA 250/06, (4 pages)
UNJUSTIFIED DISMISSAL - Whether dismissal or abandonment - Applicant involved in altercation with colleague - At later meeting applicant repeated abuse and other accusations but Authority did not accept applicant was threatened or abused - Applicant later left work without informing anyone - Next day applicant told Managing Director ("MD") would be absent to see union representative - Applicant told representative could be seen at work and to come in unless sick - Applicant informed would be dismissed if did not provide medical certificate - Applicant contacted union and absent two days without medical certificate - Union representative spoke with MD who informed him applicant dismissed for abandonment - MD could not have safely concluded applicant did not intend to return and employment abandoned - MD aware applicant stressed and wanted to consult union - Decision should have been delayed until union spoken to and applicant given opportunity to comment - MD pre-empted disciplinary proceedings by stating employment abandoned - Dismissal unjustified - Remedies - If applicant had not behaved as he did personal grievance would not have arisen - Actions blameworthy - Contributory conduct 100 percent - Length of service not specified - Truck driver
Result: Application granted ; Reimbursement of lost wages (3 months reduced to 0) ; Compensation for humiliation etc ($4,000 reduced to $0) ; Costs reserved
Nicholls v Fox Manufacturing Ltd
18 Jul 2006, J Crichton, CA 104/06, (10 pages)
UNJUSTIFIED DISMISSAL - Misconduct - No appearance for respondent - Respondent in liquidation - After disagreement between applicant and worker, other workers refused to work with applicant - Applicant then redeployed to perform other work - Applicant questioned redeployment - Suspended after investigation - Alleged applicant failed to obey lawful instruction to perform work, and had negative affect on workplace - Workers' statements did not justify conclusion conduct so serious as to warrant dismissal - Was appropriate to question redeployment as had not seen job description - Respondent's evidence not credible - Procedural irregularities made dismissal resulting from process unsafe - Investigation so inadequate as to make dismissal substantively unjustified - Dismissal not decision fair and reasonable employer would have made - UNJUSTIFIED DISADVANTAGE - Disadvantaged by way respondent conducted itself at meeting, suspension and inappropriate process - Disadvantaged by way suspension raised at meeting, after respondent sought to persuade him meeting not disciplinary - Remedies - Significant award appropriate - Extreme health and financial consequences - Not appropriate to reserve costs - Length of service seven months - Beam saw operator
Result: Application granted ; Reimbursement of lost wages ($3,960) ; Compensation for humiliation etc ($12,000) ; Costs in favour of applicant ($3,750)
O'Kelly-Barnes v Tillermans (2003) Ltd
11 Jan 2007, H Doyle, CA 2/07, (7 pages)
UNJUSTIFIED DISMISSAL - Constructive dismissal - Applicant advised restaurant owner study commitments required another chef to cover some shifts - Next day applicant given letter stating he would be replaced as head chef - Applicant resigned - No written employment agreement - More probable than not applicant did not clearly articulate intention to study at interview - No agreement applicant could study while head chef - Authority not satisfied relationship terminated by mutual agreement - Respondent's letter effectively dismissed applicant - Resignation within notice period in nature of constructive dismissal - Fair and reasonable employer in respondent's circumstances would conclude it required head chef to work all shifts - Dismissal substantively justified - There was difference between considering proposal and consequences if proposal unsuccessful - Fairness required applicant to be clear study leave put employment in jeopardy - Procedurally unfair to hand applicant letter advising of replacement - Dismissal unjustified - Remedies - No order for lost wages as employment would have inevitably terminated when course began - Applicant could have worked until then - Name of respondent amended by consent - Length of service less than three months - Head chef
Result: Application granted ; Compensation for humiliation etc ($1,000) ; Costs reserved
Wilford v Aden Electrical Ltd
19 Jan 2007, J Wilson, AA 12/07, (11 pages)
UNJUSTIFIED DISADVANTAGE - Applicant claimed subjected to bullying - Asked that he not work with bullying employees - Dispute whether bullying occurred - Applicant obviously distressed - Fair and reasonable employer would and should have undertaken full investigation - Not investigating complaints constituted unjustified action - Unjustified disadvantage - UNJUSTIFIED DISMISSAL - Constructive dismissal - Manager made aware of situation and asked for time to investigate complaints - Applicant on stress leave when resigned - Not at work when resigned, so not at risk - Chose to resign before investigation completed because received offer of employment - Resignation not caused by breach of duty - No constructive dismissal - PENALTY - Applicant requested s4A Employment Relations Act 2000 ("ERA") penalty for breach of duty of good faith - Respondent accepted resignation with immediate effect - Applicant claimed by not being allowed to work notice was discriminated against on grounds had lodged grievance - If respondent did breach duty, breach not deliberate or sustained - No penalty warranted - ARREARS OF WAGES - Money deducted from final pay and due and owing - Length of service one year two months - Electrical apprentice
Result: Application dismissed (Unjustified dismissal, penalty) ; Application granted (Unjustified disadvantage) ; Compensation for humiliation etc ($5,000) ; Arrears of wages ($110.02) ; No order for costs
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