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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
Hubber v Air New Zealand Ltd
25 Jul 2006, P Montgomery, CA 108/06, (4 pages)
UNJUSTIFIED DISADVANTAGE - Applicant alleged unjustifiably disadvantaged by final warning issued by respondent - Respondent investigated allegation applicant breached code of conduct and check-in procedures - Applicant checked herself in and removed baggage tags from airport - Finding of misconduct in respect of baggage tags open to respondent following full and extensive inquiry - No disparity of treatment - Incidents of others removing tags were simply allegations and although applicant undertook to provide further information on issue to respondent, she failed to do so - Respondent entitled to impose appropriate sanction - No unjustified disadvantage - Length of service over 25 years - Duty Terminal Manager
Result: Application dismissed ; 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)
Sullivan v Maxwell Marine Ltd
24 Jul 2006, R Arthur, AA 249/06, (8 pages)
UNJUSTIFIED DISMISSAL - Poor performance - Five step disciplinary process in employment agreement - Although respondent did not establish counselling provided as first step, any procedural error cured by subsequent meetings - Over seven months applicant received five written warnings and attended several disciplinary meetings - No procedural error or unfairness in labelling three warnings "final" - Genuine reasons for performance concerns - However, applicant given insufficient time and detail to prepare responses to examples given in disciplinary meetings - Respondent moved too far, too fast, particularly with last three warnings - So close together no real opportunity for improvement or proper preparation - Not clear applicant aware at start of last meeting termination could result - No opportunity to comment on decision to dismiss - Dismissal unjustified - UNJUSTIFIED DISADVANTAGE - Applicant's allegations demoted and discriminated against dismissed - Authority did not accept dismissal engineered to avoid paying redundancy entitlement - No disadvantage - Remedies - Authority not satisfied from applicant's evidence and general buoyancy of labour market that lost wages sufficiently mitigated - Contributory conduct 50 percent - Length of service not specified - Team leader
Result: Application granted (Unjustified dismissal) ; Reimbursement of lost wages (8 weeks reduced to 4 weeks) ; Compensation for humiliation etc ($2,000 reduced to $1,000) ; Application dismissed (Unjustified disadvantage) ; 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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