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Anderson v Resolution Audio Visual Consultants Ltd
19 Feb 2008, R A Monaghan, AA 53/08, (12 pages)
UNJUSTIFIED DISMISSAL – Applicant initially raised matters outside Authority’s jurisdiction – Actual claims identified during investigation meeting – Applicant also claimed respondent breached Protected Disclosures Act 2000 as dismissal amounted to retaliation for disclosing matter to be filed with Authority – Authority found allegation more appropriately addressed as personal grievance – Employment agreement (“EA”) included twelve week probation period – Respondent had informal practice of conducting four weekly meetings during probation period – Applicant claimed felt being “set up” and respondent trying to terminate employment when respondent sought to schedule meeting – Respondent’s manager (“R”) conducted visit of applicant’s site to ensure applicant had necessary tools to complete work and upon concerns by client regarding work done by applicant – Applicant claimed became agitated because R expressed concern about speed of work – Authority found discussion did not amount to harassment or bullying by R – Applicant claimed became aggravated when R made comment about settlement agreement (“SA”) with previous employer (“X”) – Authority found R not aware of X or details of SA and comment made no reference to details – Respondent made enquires with Northern Employers Manufacturers Association (“EMA”) about other problems involving applicant – Inquiry produced Authority determination with no connection to SA – Authority found EMA information was extent of respondent’s knowledge of applicant’s problems with previous employers – Authority found initially respondent had no knowledge of SA until told by applicant – Second incident occurred where applicant required to visit X by respondent – Authority found applicant oversensitive to reception received at X and had no reasonable grounds to assume X discussed SA with respondent – Respondent had previously agreed with client that applicant would not attend client site without supervisor – Incident occurred where applicant threatened to take respondent to Employment Court when respondent attempted to set applicant’s tasks – Co-worker gave evidence applicant shouted loudly and was embarrassed applicant made a scene – Next day applicant filed statement of problem in Authority – Fourth incident occurred where applicant refused instruction of respondent claiming task that of junior technician – R told applicant that respondent’s continuing refusal could be viewed as serious misconduct which could result in dismissal – Authority accepted applicant’s response as “fine” and entitled to “protest” – Applicant told to attend disciplinary meeting to discuss incidents – Applicant claimed meeting convened for unjustified reasons – Authority found applicant did not attempt to dispute facts put to him and instead disputed legal basis for respondent’s concerns, misapplying material and taking misconceived position – Authority found applicant’s aggressive and argumentative conduct breached consensus of acceptable behaviour – Authority found instructions given to applicant lawful, reasonable, and within scope of EA – Found applicant insisted on unsustainable position and acted on incorrect assumptions of facts and misunderstood law – Dismissal justified – GOOD FAITH – Applicant claimed respondent’s denial of knowledge of settlement agreement before applicant provided details amounted to breach of good faith – Authority did not accept applicant lied to about respondent’s possession of confidential information regarding SA – Application dismissed – Audiovisual Technician
Result: Application dismissed ; Costs reserved
Chew v Aslan Consulting Group Ltd and Ors
5 Oct 2007, H Doyle, CA 3A/07, (34 pages)
GOOD FAITH - Applicant employed by first respondent (“A”) - A sold business to second respondent (“T”) - T offered applicant employment - Applicant commenced employment with T but did not accept terms and conditions of employment - Applicant alleged A breached s4 and s60 Employment Relations Act 2000 (“ERA”) in salary negotiations prior to sale of business to T - Authority found no satisfactory evidence to conclude A acted in bad faith during salary negotiations - Applicant alleged A breached provisions of s69M ERA - A required to have employee protection provision in every individual employment agreement (“IEA”) entered into after 1 December 2004 - Authority found provision satisfied requirements of ERA - In final submissions applicant also alleged breaches of s69N ERA and s69O ERA - Authority found no breach of ERA - Application dismissed - BREACH OF CONTRACT - Clause in applicant’s contract required consultation about proposed sale of business - Applicant told about sale, and meetings held - Authority found A adequately consulted with applicant, except on whether redundancy compensation payable if applicant did not transfer to T - Authority found applicant’s position with A redundant - Found no entitlement to redundancy compensation in IEA except for four weeks’ notice in writing or payment in lieu of notice - Authority ordered A to pay applicant four weeks pay in lieu of notice - Applicant also claimed A breached good faith obligations at time of sale of business to T - Authority found applicant supplied with sufficient information and given opportunity to comment on employment - Found A did not breach duty of good faith - UNJUSTIFIED DISADVANTAGE - Applicant claimed disadvantaged by pay reduction taken when transferred to T, and non-disclosure of information - Authority found failure by A to secure transfer of identical terms and conditions of employment when transferred to T not an unjustified disadvantage - Non-disclosure of information did not amount to unjustified disadvantage - UNFAIR BARGAINING - Applicant alleged T breached s4 and s60 ERA in salary negotiations prior to purchase of business from A - Applicant claimed T bargained unfairly in terms of s68 ERA - Applicant given copy of proposed IEA and advised to seek independent advice - Authority found T responsive and communicative with applicant’s representatives throughout negotiations - Found no breaches of good faith - Found T did not bargain unfairly - DISCRIMINATION - Applicant alleged T breached s104 ERA by paying him less than another employee (“M”) - Authority satisfied grievance raised within 90 days of applicant becoming aware of it - Authority found M and applicant did not have same or substantially similar qualifications, experience or skills - No evidence of causal link between applicant’s salary and race - No discrimination - Conflict of interest - Applicant alleged third respondent (“H”) acted in conflict of interest - Authority found no jurisdiction to determine claim - PENALTY - Applicant sought penalty against H for aiding and abetting A’s breach of IEA and racial discrimination - A’s breach of IEA did not warrant penalty - No justification for award of penalty against H - No evidence H discriminated against applicant - Application dismissed - IT Technician
Result: Application granted (Breach of contract) ; Wages in lieu of notice (4 weeks) ; Applications dismissed (All other claims against first respondent) ; Applications dismissed (All claims against second respondent) ; Applications dismissed (Claims against third respondent) ; Costs reserved
Smith v Dannevirke High School
14 Feb 2008, J Crichton, WA 17/08, (11 pages)
PRACTICE AND PROCEDURE – GOOD FAITH – Earlier determination where parties settled all matters and Authority issued consent order – Applicant claimed respondent procured applicant’s agreement to settle employment relationship problem through dishonest practices or bad faith – Respondent argued applicant’s claims amounted to vexatious litigation – Applicant discovered name reported to Teachers Council (“TC”) – Applicant claimed if had knowledge was to be reported to TC would not have settled or settled under same terms – Respondent argued applicant reported to TC because required when employment terminated in certain circumstances – Applicant claimed “tricked” into settlement when respondent should have known importance of report to TC – Respondent argued statutory obligation to report to TC not negotiable and applicant, as professional teacher, would have known of professional obligations to TC – Respondent further argued report to TC was subject of extensive discussion and notification between parties – Authority found on evidence letter of notification to TC after mediation process unsuccessful – Authority satisfied respondent’s advocate told applicant’s advocate advised TC prior to settlement – Respondent’s advocate’s evidence preferred – Authority did not accept respondent’s argument that applicant knew or ought to have known of statutory obligation to notify TC – Authority found respondent met obligation to advise applicant that TC informed – UNJUSTIFIED DISADVANTAGE – Applicant claimed respondent’s observations at school prize giving breached confidentiality provisions of settlement agreement – Authority found respondent’s observations ill advised and breached clause in settlement agreement – Respondent argued applicant also breached settlement agreement by making information available to news media – Authority found both parties breached settlement agreement – Authority did not think penalty approach necessary or sensible – Authority concluded breaches in effect balanced each other out and not activated by bad faith or malice – Application dismissed – Teacher
Result: Application dismissed ; Costs reserved
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