EMPLOYMENT CASES SUMMARY March 2008 - NZ Department of Labour

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French v The Chief of Defence Force

30 May 2007, M Urlich, AA 163/07, (9 pages)
UNJUSTIFIED DISADVANTAGE – Applicant alleged unjustifiably disadvantaged by manner respondent handled complaint about his behaviour – Preliminary enquiries occurred before applicant advised of complaint or formal complaint lodged – Enquiries reasonable, although conclusions could have been put more delicately to applicant - Applicant resigned for reasons unrelated to complaint – Complainant advised, given resignation, would not proceed with complaint and manager communicated this to applicant – However, complainant later changed mind and lodged complaint - Formal investigation begun – Applicant claimed retraction and reinstitution of complaint enhanced anxiety and concerned about investigation process - No evidence manager received advice complaint withdrawn in anything but good faith and passed information to applicant in same spirit - No evidence actions unjustified - No grounds for unjustified action arose from colleague's involvement in complaint process - Nothing respondent could do about timeliness of written complaint - Investigation concluded after employment relationship ended - Criticised behaviour of both complainant and applicant – Applicant's employment not disadvantaged as employment did not exist at time of alleged disadvantage relating to findings of investigation - No unjustified disadvantage - HR adviser

Result: Application dismissed ; Costs reserved

Howard v Air Nelson Ltd

16 May 2007, R Arthur, AA 150/07, (7 pages)
UNJUSTIFIED DISADVANTAGE - Applicant given verbal warning after conversation about alcohol consumption left crew controller in doubt about applicant's ability to undertake duty - Warning now expired and removed from applicant's file - However applicant considered residual slur on reputation and wanted hearing in pubic forum - Whether warning given for concern outside scope of disciplinary investigation as notified to applicant - Applicant objected to coming in early when on standby and referred to zero alcohol requirement for pilots - Respondent began investigation into refusal and allegation informed controller would not be safe to fly until two hours into shift due to alcohol consumption - Early into disciplinary proceedings, respondent indicated no longer concerned about applicant's fitness for duty on date in question - However, still had concerns, namely believed reference to use of alcohol, even as an example, inappropriate in circumstances - Applicant considered issue outside scope of disciplinary investigation as set out in letter from respondent - While respondent made it clear had other concerns, scope of concerns not clearly stated and discussion appeared to focus of operation of contractual provisions - Applicant had refused to answer questions relating to reference to alcohol on grounds outside scope of inquiry and respondent did not appear to correct misapprehension - Residual concern not clearly put to applicant and not given opportunity to respond to it - Conclusions applicant's behaviour unsatisfactory unfair - Warning unjustified - Remedies - Compensation for loss of benefit of "clean" record not warranted - Ability to describe warning as unjustified sufficient - Criticism of "behaviour or judgement" as captain offended professional personal pride in aviation career - Disadvantage suffered was effect on enjoyment of employment and lessened regard of respondent for him - Concerns other staff making defamatory comments already addressed by respondent - Period of disadvantage limited as warning now "expired" - Pilot

Result: Application granted ; Compensation for humiliation etc ($1,500) ; Costs reserved

Li v Astral Management Ltd

15 May 2007, J Crichton, CA 54/07, (12 pages)
ARREARS OF WAGES - Applicant supplied two purported employment agreements - Second document operative agreement - Applicant to be paid salary, not wages as claimed - Alleged worked 1,516 unpaid hours - No wage and time records - Authority accepted records not required for salaried workers - More likely applicant did work some extra hours - No entitlement to additional remuneration pursuant to employment agreement and at no stage was applicant paid less than minimum wage - No basis for arrears claim or recovery of other sums applicant claimed entitled to - UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Evidence did not support any wrong doing by respondent to found disadvantage or constructive dismissal claim - Applicant absent for various periods at end of employment with only sporadic contact - Respondent's attempts to establish applicant's intentions resulted in it being warned off by applicant's friend - Applicant later returned key and removed belongings - Employment ended without resignation or indication applicant might return to work, however friend of applicant indicated she had new job - In circumstances, respondent could not be blamed for end of employment relationship - No personal grievance - Applicant's witnesses included two "secret" witnesses who gave evidence on footing identity not disclosed to respondent - COSTS - Normally costs would be reserved - However, applicant's financial means precluded her form making realistic contribution to costs - Costs to lie where they fall - Restaurant worker

Result: Application dismissed ; Costs to lie where they fall

Mathieson v Kaituna Pastoral Farms Ltd

23 Apr 2007, R A Monaghan, AA 116/07, (18 pages)
UNJUSTIFIED DISADVANTAGE - Respondent had number of concerns about applicant's performance - Applicant not promoted to manager as promised - However, failure justified to extent it took into account his unwillingness to carry out full range of managerial duties - Respondent did not seek response from applicant before issued performance warning, although applicant should not have been so dismissive of respondent's earlier informal approach - Seriously flawed procedure - Entitled to $3,000 compensation - Not persuaded promotion would have gone ahead but for warning and associated concerns - No further award appropriate - No basis for allegation applicant "harassed" to sign new employment agreement - Applicant also claimed disadvantaged when leave request granted and later withdrawn - Authority not persuaded amounted to disadvantage grievance - UNJUSTIFIED DISMISSAL - Constructive dismissal - Parties and representatives met to discuss employment problems - Suggestion applicant draft job description reasonable starting point for addressing issues - Applicant took view because unsuccessful in negotiating exit package during meeting matters at stalemate and employment over - Applicant became disruptive and uncooperative - Failed to respond to respondent's queries over several weeks or provide job description discussed at meeting - Further meeting resulted in applicant being demoted and required to report daily to manager - Applicant considered demotion a repudiation of employment agreement and resigned - Demotion repudiatory conduct - Circumstances amounted to dismissal - However, respondent had gone as far as it could in attempting to resolve issues between parties - Reasonable grounds to conclude applicant could not continue in role - Dismissal justified - ARREARS OF WAGES AND HOLIDAY PAY - Parties agreed applicant owed wages and holiday pay - Interest 7.9 percent - RECOVERY OF MONIES - Authority not persuaded parties agreed on costs associated with dogs or phone rental - Unclear how purchase of farm bike would be recognised - Applicant received higher salary than agreed and likely increase recognised purchase - No entitlement to additional payment - Applicant attempted to claim bonus on behalf of other staff - Not authorised to do this and no order made - Farm manager

Result: Application granted (Disadvantage, arrears) ; Compensation of humiliation etc ($3,000) ; Arrears of wages and holiday pay (Quantum to be determined) ; Interest (7.9%) ; Application dismissed (Dismissal, recovery of monies) ; Costs reserved

Ringrose v Brazin Ltd and Bras n Things New Zealand Ltd

5 Feb 2008, Y S Oldfield, AA 31/08, (29 pages)
BREACH OF CONTRACT – UNJUSTIFIED DISADVANTAGE – Applicant claimed health harmed by workplace stress and respondent failed to provide safe system of work – On doctor’s advice took two weeks leave - Applicant required to start new operation from scratch with inexperienced staff – Job too much for one person – Excessive workload caused applicant’s health problems – However, risk not foreseeable – Claim for wages lost while on leave dismissed – UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed when returned to work, workload remained excessive and subjected to unreasonable and bullying treatment by managers – Applicant given strict instructions to improve stores – Conflict with manager led to “counselling” about behaviour and investigation into alleged serious misconduct – Applicant resigned, claimed lost all confidence in manager and felt overwhelmed – Applicant clearly suffered harm – Harm and resignation direct result of pressure applicant faced upon return to work – Counselling sessions unfair – While more likely than not applicant’s tone “unprofessional”, in context manager should have seen reaction as sign of distress – To describe actions as serious misconduct out of proportion with gravity of error – Extent of demands broke applicant’s health while unreasonable nature of demands destroyed her trust and confidence in managers – Ill health and resignation foreseeable and direct consequences of treatment she received from managers – Rather than attempt to prevent further harm, respondent imposed additional and unreasonable demands – Serious breach of duty to provide safe system of work – Remedies – Very distressing experience for applicant – Diagnosed with reactive depression and unable to work for several months - $20,000 compensation appropriate – PRACTICE AND PROCEDURE - Dispute and counterclaim relating to applicant’s expenses reserved as neither party provided enough evidence for Authority to make determination

Result: Application dismissed (breach of contract, unjustified disadvantage) ; Application granted (unjustified dismissal) ; Reimbursement of lost wages (4 weeks) ;Wages in lieu of notice (2 weeks) ; Application reserved (Dispute and counterclaim) ; Costs reserved

Robbins v Telstraclear Ltd

29 Jan 2008, J Crichton, WA 12/08, (10 pages)
UNJUSTIFIED DISADVANTAGE – PARENTAL LEAVE - Alleged unjustifiably disadvantaged when respondent failed to consult her about restructuring, failed to provide her with sufficient work, failed to declare her position redundant, and required her to pay back part of lump sum parental leave payment – While on parental leave respondent restructured – Respondent argued no obligation to consult applicant as considered she was not affected by restructure - Applicant adversely affected by restructure – Fair and reasonable employer would have consulted applicant – Respondent also failed to provide applicant with appropriate quantity of work - Unjustified disadvantage – Applicant’s request respondent consider disestablishing position reasonable and proper – Quick dismissal of suggestion did respondent little credit, but decision available to employer – Authority loathe to interfere in decision by impliedly determining applicant’s position surplus to requirements – Clear respondent had discretion to insist on repayment of parental leave payment – Applicant aware of parental leave policy but considered by seeking repayment respondent putting “the boot in” – No evidence discretion exercised in improper way – No unjustified disadvantage – Remedies – No award of lost wages as employment did not come to end as consequence of employer’s actions – Global compensation award appropriate – Project manager

Result: Application granted in part ; Compensation for humiliation $7,500 ; Costs reserved