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Ahuru v Utility Styles Ltd t/a Identity
28 Feb 2008, J Crichton, CA 19/08, (6 pages)
UNJUSTIFIED DISMISSAL - Employment of twelve days - Applicant on unemployment benefit when interviewed and offered employment by respondent - Applicant remained on benefit during three month period until employment began - Six days into employment respondent spoken to about performance - Respondent’s manager (“M”) and M’s wife (“D”) seriously assaulted with M being hospitalised - D required to take over management of respondent whilst continuing own full time employment with another employer - D had meeting with applicant about performance issues and consequently employment relationship ended - Parties disputed what occurred at meeting with D alleging applicant resigned and applicant claiming was dismissed - Respondent claimed if applicant did not resign then dismissed for incapacity - Respondent claimed applicant misrepresented abilities and incapable of performing job - Authority found evidence of respondent’s witnesses that applicant resigned - Not open to respondent to offer alternative argument not supported by evidence - Authority preferred D’s evidence as to what happened at meeting - D’s evidence corroborated by another employee - Authority found no evidence consistent with a dismissal - UNJUSTIFIED DISADVANTAGE - Applicant claimed suffered disadvantage by missing opportunities to seek other employment while waiting to begin employment with respondent - Authority satisfied applicant chose to accept position that did not start immediately - Authority found no unjustified action by respondent capable of causing disadvantage - Claim dismissed - Salesperson
Result: Application dismissed ; Costs reserved
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
Baker v Baker Timber Supplies
13 Nov 2007, J Scott, AA 352/07, (25 pages)
UNJUSTIFIED DISMISSAL - Constructive dismissal - Applicant had worked at family business for 20 years - Applicant’s claims occurred against background of dispute over management of family businesses and estate - Applicant given letter raising performance issues and requesting certain actions be taken - Several days later respondent’s director (“F”), who was also applicant’s mother, approached applicant at worksite to give him instructions - Due to prior incidents F felt was necessary to have police officer present for discussion - Later that day applicant and his brother twice attempted to talk with F about family matters, which resulted in police being called - Respondent’s general manager then informed applicant suspended for remainder of day and could no longer use work vehicle - Applicant received second letter from respondent advising had not addressed issues in first letter, raising new concerns, and advising disciplinary meeting to be held - Applicant advised taking sick leave and could not attend meeting - Applicant resigned, stating actions taken by respondent caused resignation - Authority found aspects of respondent’s approach to dealing with applicant’s conduct and performance issues unfair - However, subsequent communications ameliorated negative connotations of respondent’s approach and made clear applicant’s cooperation sought to continue employment relationship - Applicant chose not to see respondent’s actions as conciliatory - No breach of duty so serious that applicant had no option but to resign - No constructive dismissal - UNJUSTIFIED DISADVANTAGE - Applicant claimed suspension and removal of work vehicle amounted to unjustified disadvantage - Authority found decision to send applicant home was reasonable - Found situation rare one where employer entitled to act without further inquiry in order to preserve personal safety - Authority found removal of work vehicle reasonable in circumstances - Authority noted if wrong in finding would not have awarded remedies because of applicant’s contributory conduct - No unjustified disadvantage as claimed by applicant - Authority relied on s122 Employment Relations Act 2000 to find unjustified disadvantage grievance different from that claimed by applicant - Authority found tone and timing of respondent’s first letter to applicant unfair - Second letter unfair to extent added new and dated complaints - Respondent’s actions amounted to breach of good faith and shook applicant’s trust and confidence in employment relationship - Unjustified disadvantage - REMEDIES - Despite applicant’s poor conduct, no reduction for contributory conduct as respondent responsible for unjustified disadvantage grievance found by Authority - Award of $2,500 compensation appropriate - Plainer machinist/Plant maintenance technician
Result: Application dismissed (Unjustified dismissal) ; Application granted (Unjustified disadvantage) ; Compensation for humiliation etc ($2,5000) ; Costs reserved
Baker v The Warehouse Ltd
8 Feb 2008, L Robinson, AA 36/08, (13 pages)
CONSTRUCTIVE DISMISSAL – Applicant had loss prevention function in job description comprising sixty five percent of total work – Respondent invoked dialogue with staff regarding initiative to improve customer service (“service initiative”) – Pursuant to service initiative respondent sought to reassign loss prevention function to managers – Applicant and other staff advised of changes – Staff asked to volunteer hours, however insufficient volunteers – Respondent’s manager informed applicant would be transferred to night duties which applicant objected to – Authority accepted respondent’s evidence that manager sought to invoke dialogue but applicant refused – Respondent eventually accepted applicant’s objection and instead proposed applicant work in stockroom – Applicant stated could not handle stockroom work – Respondent aware applicant had pacemaker – Applicant resigned after presented with letter confirming position changed to stockroom work – Respondent argued clause in employment agreement (“EA”) entitled respondent to vary duties – Respondent argued clause together with policy of “multi-skilling” gave rise to clear meaning of clause that employees may be required to work in different departments – Authority found under EA applicant appointed directly into specialist function – Respondent argued all employees employed primarily as “team members” with some appointed to specialist functions – Respondent argued clause licensed respondent to direct “team members” to work in different departments – Authority found in essence respondent’s argument was that a change in duties was not change of job or not different job – Authority found respondent’s power under clause that reassignment solely for purposes of multi-skilling – Found applicant’s reassignment to stockroom not for primary purpose of multi-skilling – Redundancy provisions in EA more aligned to situation but not invoked by either party – Authority did not think appropriate to order compliance with redundancy provisions in EA – Unjustified constructive dismissal – Remedies – Applicant’s failure to engage in discussions with respondent not blameworthy conduct – No contributory conduct – $10000 compensation appropriate given length of service and nature of grievance – Costs reserved – Store Security and Loss Prevention Officer
Result: Application granted ; Compensation for humiliation etc ($10,000) ; Costs reserved
Barwick v Leaderbrand Produce Ltd
21 Jan 2009, P R Stapp, WA 6/09, (15 pages)
UNJUSTIFIED DISMISSAL – Applicant summarily dismissed – Employee (“T”) approached applicant and requested lettuce to take home – Applicant gave T permission but did not ask quantity T intended to take – Applicant conceded knew lettuce to be used at party and funeral – Respondent’s owner (“M”) discovered removal of two large sackfuls of lettuce from workplace – Police called but matter not taken further once established permission given by applicant – Respondent argued applicant knew quantity of lettuces taken – Applicant called to meeting with respondents managers – Authority found evidence disputed whether applicant told at meeting worker caught taking two sackfuls of lettuce – Applicant claimed learnt about sackfuls from letter received that day – Later on same day received letter stating actions “theft” and serious misconduct – Applicant suspended without pay – Second meeting held where applicant confirmed evidence at first meeting – M delivered dismissal letter to applicant – Respondent argued applicant changed mind about not knowing quantity of lettuces taken when evidence given at meetings – Respondent concluded applicant lying, not credible and explanation not plausible – Respondent argued applicant over-reaching authority and applicant’s part in matter gave rise to suspicion “complicit in aiding and abetting theft” – Authority accepted “theft” in this context meant unauthorised possession of company product – Authority found respondent had difficulty establishing theft involving applicant directly because no police prosecution and applicant not found in possession of produce – Found no causal link established between applicant giving permission to T, what T alleged to have done, and what T told respondent – Respondent did not tell applicant that considered suspicious applicant lying – Authority found fair and reasonable employer would have given applicant notice of development and time to prepare reply – Authority found only matter with any veracity was allegation applicant over-reached authority – Common ground that amount beyond five lettuces required management approval – Authority found although no prescriptive policy on number of lettuces that could be taken, clear understanding what approvals required for different amounts – Authority not persuaded applicant innocently over-looked company policy – Authority found since applicant knew request for lettuce for use at party and funeral then seriously amiss in not asking quantity required – Found applicant should have referred request to management for approval – Authority to determine whether “over-reaching authority” serious misconduct under Employment Agreement (“EA”) was breach of trust and confidence – Authority found respondent suspicious and relied on own serious misconduct to justify dismissal instead of any particularised term of serious misconduct under EA – Authority found because not enough evidence to establish serious misconduct, applicant had personal grievance – Found at second meeting, when formed belief applicant lying, respondent did not enable applicant to reply or obtain representation – Dismissal unjustified – REMEDIES – Found applicant’s failure to ask worker how much lettuce required serious omission in responsibilities – Found applicant compounded problem by leading respondent to believe was lying – Authority found applicant did know there were two large sacks of lettuce prior to meetings in assessing contributory conduct at 100 percent – Authority concluded applicant grossly negligent – Supervisor
Result: Application granted (Unjustified dismissal) ; Costs reserved
Duffy v Affco Holdings Ltd
7 Feb 2008, V Campbell, AA 33/08, (17 pages)
UNJUSTIFIED DISADVANTAGE – Applicant claimed lack of process in implementation of redundancy decisions – Claimed effect of redundancies meant increase in workload – Also claimed since suffered previous depressive episode caused by workplace stress should be made redundant – Applicant asked to perform tasks of redundant employee (“T”) – Applicant claimed overwhelmed by requirement to learn T’s tasks as well as carry out own – Applicant claimed disadvantaged by unjustifiable actions by respondent when cold store restructured and co-workers positions disestablished – Applicant also claimed respondent refused to acknowledge or address concerns relating to applicant’s deteriorating health caused by increasing stress levels which respondent made aware of – Respondent’s first manager did not accept changes to staff levels in cold store would impact on applicant’s role – Authority found no dispute decisions around adequate support coverage not discussed with applicant – Respondent’s second manager (“L”) accepted never responded to applicant’s questions and conceded never discussed redundancies with applicant – Respondent argued other resources available and applicant to make changes work – Respondent’s third manager claimed no expectation applicant do more than normal but argued work could be more efficient utilising existing staff and by bringing in help – L argued that applicant’s view unreasonable – Authority satisfied process undertaken by respondent in implementing restructuring unfair and not undertaken in good faith – Found no consultation with applicant prior to decisions regarding co-workers – Found evident applicant did not understand why staff numbers being reduced and where missing expertise would be resourced – Applicant also claimed disadvantage through respondent’s failure to provide safe workplace – Applicant claimed bullied into compromising compliance standards as result of restructuring – L advised that applicant take 2 weeks annual leave – Applicant raised grievance after returning from annual leave and given final warning from respondent – Authority found restructuring process carried out unfairly and in breach of good faith obligations – Respondent’s failure to consult with applicant unjustified – Found return of applicant’s depression caused by respondent’s unjustified actions which created significant concerns by applicant on how work to be completed – Found respondent’s actions unjustifiably disadvantaged applicant – UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed resignation culmination of matters in unjustified disadvantage claim – Also claimed issuance of two warnings led to loss of trust and confidence in respondent – Applicant claimed warning letters issued without fair and reasonable process being followed – Authority found first warning letter did not constitute warning – However, process adopted in issuing final warning fundamentally flawed – Constructive dismissal – Authority discussed whether applicant should have been made redundant – Authority found employer to decide whether redundancy situation exists and employee had no right to insist on redundancy – Remedies – Authority found reimbursement of one week of lost wages appropriate as applicant unemployed for one week as very stressed – Authority found $10000 compensation appropriate given applicant’s uncontested evidence and 29 year tenure – Found no contributory conduct – Cold Store Manager
Result: Application granted (Disadvantage) (Dismissal) ; Reimbursement of lost wages (1 week) ; Compensation for humiliation etc ($10,000) ; Costs reserved
Harkins v Crump t/a Nu Coat Painting
11 Feb 2009, V Campbell, AA 41/09, (7 pages)
JURISDICTION – Respondent argued applicant engaged on “labour only” basis as independent contractor – No written employment agreement – At interview, respondent advised applicant of hours of work, hourly rate and that to be “labour only” – Authority satisfied parties intended applicant to be engaged as “labour only” contractor with view to becoming employee – Considering control test, applicant instructed daily and supervised by respondent’s employee – Respondent set applicant’s hours of work and provided equipment – Respondent refused applicant sick leave when applicant claimed hung over – Authority found respondent’s control over applicant typical of employment relationship – Applying integration test, Authority found applicant’s duties and functions central to respondent’s operations – Others working in similar capacity for respondent employed on wages – Under fundamental test, Authority found applicant not in business on own account – Applicant paid PAYE tax and never produced invoices – Applicant had no scope to generate increased earnings or profit – Found real nature of relationship was employment relationship - Applicant an employee - UNJUSTIFIED DISMISSAL – Applicant requested half day off work to recover from night out with friends – Applicant conceded in investigation meeting that when respondent asked if had been on drug “P” all night, had replied “something like that” – Respondent denied leave and gave instructions for work – Conflict in evidence as to when applicant left workplace – Respondent argued applicant left over two hours early – Applicant claimed worked full day – Next day applicant text messaged respondent when respondent late to arrive at work – Respondent told applicant on telephone to wait as wished to talk to applicant about behaviour – Applicant swore and advised was going home sick – Heated argument followed - Applicant said “f** off and go stick it up your a**” then disconnected call – Respondent called applicant back and further argument and swearing followed – Doctor’s medical report not consistent with applicant’s claim that had been vomiting for six days – Authority found in some circumstances where resignation occurs during heated discussion, employer should allow “cooling off” period – This situation did not require cooling off period – Found intention to resign unequivocal – Found when respondent called applicant back respondent merely confirmed that if applicant wanted to leave then could go – No dismissal – Authority noted if had found dismissal occurred, conduct would have been precluded applicant from receiving any awards - Painter
Jefferson v Enduring Sales Ltd
23 Sep 2008, R A Monaghan, AA 332/08, (12 pages)
UNJUSTIFIED DISMISSAL - Applicant claimed unjustifiably dismissed - Respondent denied dismissal, claiming applicant casual worker - Authority found applicant part time employee, not casual - Found applicant expected to work regular hours - Respondent provided insufficient evidence to suggest applicant casual employee - Applicant’s evidence preferred on matters involving credibility - Respondent’s director (“L”) became concerned about applicant’s performance - Dispute between applicant and L as to number and timing of meetings about applicant’s performance and need for applicant’s services - Outcome of meetings that L told applicant “had to go” - Respondent offered applicant no further work - L claimed wanted employee available to work different hours and business needs changing, so fewer telemarketers required - Respondent provided little evidence in support of claim and Authority’s request for further information not adequately met - Authority did not accept no work available for applicant - Authority found likely applicant dismissed for performance issues with respondent attempting to rely on allegedly casual nature of employment after event - Performance concerns raised with applicant but not told of consequences on employment - Applicant given no opportunity to improve - Dismissal unjustified - Remedies - Authority not persuaded applicant suffered lost remuneration - Authority accepted applicant suffered some injured feelings - However, short term of employment with respondent and applicant retained employment with another employer - Compensation of $3,000 appropriate - PENALTY - Dispute between parties as to whether applicant provided with written employment agreement (“EA”) - Authority found applicant not provided with written EA - Had failure been oversight acknowledged by respondent Authority might have exercised discretion not to award penalty - However, respondent maintained written EA provided - Respondent ordered to pay penalty for failure to provide written EA - Applicant claimed cumulative effect of respondent’s actions resulted in breach of good faith - However, respondent’s actions did not warrant penalty - Telemarketer
Result: Application granted (Unjustified dismissal) ; Compensation for humiliation etc ($3,000) ; Application granted (Penalty)($500)(Payable to Crown) ; Application dismissed (Penalty) ; Costs reserved
Joyce v Cotton t/a Emerson Breakdown Service
18 Feb 2009, D King, AA 54/09, (3 pages)
UNJUSTIFIED DISMISSAL – No written employment agreement – No appearance for respondent – Authority’s decision based on applicant’s evidence – Applicant claimed heard rumours that respondent going to terminate employment but nothing said to applicant – Respondent told applicant not to worry about wages as just quiet period – Applicant telephoned respondent to enquire about wages and was told no longer had job and had been given notice two weeks prior – Applicant claimed given no notice – Authority found dismissal unjustified – Remedies – Authority satisfied applicant entitled to notice period, reimbursement of lost wages and compensation for humiliation etc - ARREARS OF HOLIDAY PAY – Wage and time records requested but not supplied - Applicant unsure how much annual leave taken, but claimed owed at least four weeks’ annual leave – Authority satisfied four weeks’ annual leave owing - COSTS – Authority found applicant’s costs reasonable - Respondent to pay applicant’s full costs plus filing fee - Breakdown service technician
Result: Application granted ; Reimbursement of lost wages ($2,400)(three weeks plus one week in lieu of notice) ; Compensation for humiliation etc ($4,000) ; Arrears of holiday pay ($2,400) ; Costs in favour of applicant ($1,250) ; Disbursements in favour of applicant ($70)(filing fee)
Mills v Catalyst Commercial Ltd
21 Feb 2008, Y S Oldfield, AA 56/08, (9 pages)
UNJUSTIFIED DISMISSAL – Applicant went home ill and provided respondent with medical certificates for period from 14 August to 28 August – Applicant obtained further medical certificate stating unfit for work until early December (“second certificate”) when had not recovered from illness by 28 August – Between 28 August and end of 29 August, applicant, her daughter and friend (“P”) left message with respondent’s manager (“B”) advising applicant sick – No communication made between applicant, daughter, P and B between 30 August and 1 September – On evening of 1 September B delivered letter to applicant stating respondent deemed employment abandoned – Applicant attended respondent’s offices as instructed by letter and presented second certificate to B – B refused to re-employ applicant, stating employment abandoned – Respondent argued two reasons for decision – Firstly, applicant distressed and difficult to deal with – Secondly, applicant’s fixed term employment had short time to run, so no point re-employing applicant when incapacitated for most of remainder of fixed term – Respondent argued did not dismiss applicant and could not be expected to re-employ applicant after employment abandoned – Applicant claimed clear did not abandon employment from messages left for B – Applicant also claimed dismissal deprived opportunity for permanent work when respondent reviewed services at conclusion of fixed term – Authority dismissed applicant’s claim for wages at penal rates – P gave evidence that thought gave second certificate to receptionist when attended work to cover for applicant – B argued found note stating applicant sick but no medical certificate – B unable to produce note at investigation meeting – Authority found as B failed to keep note must give benefit of doubt to P – Authority accepted P handed in what was understood to be medical certificate – Authority distinguished applicant’s circumstances from those in Pitolua v Auckland City Council Abattoir [1992] 1 ERNZ 693 – Authority found inaccurate to suggest no notification to respondent in relation to absence – Authority satisfied messages to B made clear illness ongoing – Authority found dismissal occurred since established notification occurred and no abandonment – Found dismissal unjustified – Authority satisfied as result of dismissal applicant lost chance to apply for permanent work – Remedies – Authority concluded loss of income result of pre-existing health problems, not personal grievance – No award for lost earnings – Authority satisfied applicant very distressed by manner of dismissal – $7,000 compensation appropriate – Cleaning Services Supervisor
Result: Application granted ; Compensation for humiliation etc ($7,000) ; Costs reserved
Newble v Moda Pietra Ltd
26 Feb 2009, J Crichton, CA 18/09, (7 pages)
UNJUSTIFIED DISMISSAL - No appearance for respondent - Applicant had communication difficulties with co-worker (“M”) - Altercation between applicant and M in which applicant made reference to “monkeys” - Altercation witnessed by respondent’s director (“C”) - Applicant claimed reference not intended as racial slur but as comment on M’s competence - Respondent did not respond to altercation until several weeks later - Applicant called to meeting with C and told dismissed because communication problems with M bad for business - Respondent purported to rely on probationary period in applicant’s employment agreement (“EA”) - Authority found applicable EA did not contain probationary period - Respondent unable to rely on probationary period - Authority satisfied word “monkey” used and even though likely applicant intended no offence, remark ill advised and almost inevitable would cause offence - Authority found applicant not warned of nature of meeting and given no opportunity to explain - Applicant provided with no evidence respondent conducted any inquiry or followed proper process - Applicant not asked to explain alleged racist remark - Authority found respondent’s process unfair - Decision to dismiss not one fair and reasonable employer would have made in circumstances - Dismissal unjustified - Remedies - No contributory conduct - Authority noted finding did not mean Authority supportive of racist or uncharitable observations made by one employee to another, as it was not - Award of $1,760 reimbursement of lost wages and $5,000 compensation appropriate - COSTS - Successful personal grievance - One day investigation meeting - Respondent to contribute $750 to applicant’s costs - Machine operator
Result: Application granted ; Reimbursement of lost wages ($1,760) ; Compensation for humiliation etc ($5,000) ; Costs in favour of applicant ($750) ; Disbursements in favour of applicant ($70)(Filing fee)
Ogilvy v Warkworth Hospital Ltd
5 Feb 2009, D King, AA 33/09, (11 pages)
UNJUSTIFIED DISADVANTAGE - Applicant claimed unjustifiably disadvantaged by formal written warning for sexual harassment - Behaviour complained of as sexual harassment was that applicant pulled chair up next to a co-worker’s (“T”) chair and lay on chair looking at T - T perceived action to be sexual - Other general complaints that applicant invaded co-workers’ personal space - Applicant informed complaints made about patient care but not told of sexual harassment complaint - Non-disciplinary meeting held to discuss complaints - Meeting unsuccessful, with discussion becoming heated - Authority found applicant unable to properly address complaints as allegations not put to applicant systematically - First indication applicant had that sexual harassment complaint made was when received written summary of allegations following meeting - Applicant raised personal grievance regarding respondent’s behaviour - Applicant then issued with formal warning for sexual harassment - Authority found issuing of warning unjustified - Authority found allegation not put to applicant to answer and behaviour did not constitute sexual harassment - Authority noted finding did not mean invasion of personal space could not in some circumstances constitute sexual harassment - Applicant unjustifiably disadvantaged by warning for sexual harassment - UNJUSTIFIED DISMISSAL - Constructive dismissal - Respondent informed applicant would no longer be working night shifts and instead would work three days per week under supervision with arrangement to be reviewed within three months - Applicant claimed unilateral lowering of pay rate and removal from night shift was repudiation of significant terms of employment agreement (“EA”) and constituted dismissal - Authority found position offered inferior alternative on lesser terms and conditions - Found applicant could regard such breach of EA as termination of EA - Dismissal unjustified - REMEDIES - Authority accepted applicant invaded co-workers personal space on occasion - However, agreed to rectify problem when made aware of it - No blameworthy behaviour amounting to contributory conduct - Applicant deeply affected by events - Compensation of $8,000 appropriate - Applicant attempted to mitigate loss - Authority satisfied appropriate case to award more than three months lost wages - Respondent to pay lost wages from date of dismissal to date of hearing less applicant’s earnings for that period - Caregiver
Result: Applications granted (Unjustified disadvantage, unjustified dismissal) ; Reimbursement of lost wages (Quantum to be determined) ; Compensation for humiliation etc ($8,000) ; Costs reserved
Sheppard v Vincent t/a Langs Mitre 10
7 Oct 2008, P R Stapp, WA 137/08, (3 pages)
UNJUSTIFIED DISMISSAL – Applicant claimed unfairly dismissed and that harassed, assaulted and stressed in workplace – Respondent opposed applicant’s claims – Applicant moved overseas - First scheduled telephone mediation abandoned because applicant advised too busy – Second mediation and telephone conference did not settle matter – Parties advised of dates scheduled for exchange of witness statements and investigation meeting – No appearance by applicant at investigation meeting – Nothing heard from applicant since telephone conference – Authority satisfied applicant know of date of investigation meeting – Found applicant made no attempt to progress matter - Found no good cause for absence at investigation meeting – Applicant presented no evidence to support claims – In absence of evidence and detail of applicant’s claims, Authority dismissed claims
Result: Application dismissed ; Costs reserved
Wilkie v Sarvee Group Management Ltd
12 Feb 2009, V Campbell, AA 42/09, (8 pages)
UNJUSTIFIED DISADVANTAGE - Respondent’s directors were mother (“J”) and son (“K”) - K’s assistant (“M”) engaged to K - K claimed issued applicant with verbal warning - Applicant claimed no warning issued, but, if was, then caused unjustified disadvantage - Applicant asked M inappropriate question during telephone call - M raised issue with J who informed K - K discussed incident with applicant and applicant explained meant no offence and apologised - K wrote to J advising applicant issued with verbal warning - However, letter never provided to applicant - Authority found applicant told behaviour inappropriate but not issued with warning - No unjustified disadvantage - UNJUSTIFIED DISMISSAL - Constructive dismissal - M claimed applicant put arm around waist and kissed hand at staff Christmas function, and made comments of a sexual nature during and after function - K rang applicant to discuss M’s complaints - Applicant alleged K angry and abusive and threatened physical violence - Applicant informed K threatening behaviour had destroyed employment relationship and forced him to resign - Applicant sought exit package and apology - K disputed applicant’s view of events and invited applicant to meeting to discuss issue - Applicant resigned before meeting held - Authority not convinced M’s complaint and K’s behaviour motivating factor for applicant’s resignation - Evidence applicant signed employment agreement with new employer around same time resigned - Also applicant’s probationary period extended and applicant knew not performing - Authority concluded no breach of duty by respondent of sufficient seriousness that applicant’s resignation foreseeable - No unjustified dismissal - Chief Operating Officer
Result: Application dismissed ; Costs reserved
Wilson v Taupo Therapy Centre Inc
4 Dec 2008, P Cheyne, AA 411/08, (14 pages)
UNJUSTIFIED DISMISSAL - Constructive dismissal – Applicant claimed not provided with written employment agreement (“EA”), not advised of right to support person in meeting reviewing employment, bullied and psychologically abused, terms of employment changed and privacy breached – Respondent was incorporated society founded by “H” – Applicant engaged for two month probationary period – Respondent gave applicant written proposal – Authority found proposal met most of requirements of s65 Employment Relations Act 2000 (“ERA”) – Found EA’s informality and poor drafting did not overall constitute breach of ERA – Found respondent did not advise applicant that entitled to seek independent advice on EA – However, penalty not sought so matter not taken further – Applicant sought approval from H and financial administrator (“G”) that applicant’s employment also constitute fieldwork placement for applicant’s University qualification – Applicant claimed H ticked boxes and signed form – G and H claimed H signed form but did not tick boxes as required further discussion – Authority found signed, unticked copy of document represented what partied agreed – H called meeting due to concern over applicant’s behaviour during interview with reporter and at hui – Applicant not given opportunity for support or representation at meeting – H expressed dissatisfaction regarding applicant’s team fit, inappropriate remarks, teasing, personal presentation and eating disorder – H telephoned applicant’s former manager (“D”) to discuss suspected eating disorder and behaviour at hui – H scheduled meeting to review applicant’s performance as probationary period to expire – Parties unable to agree on performance review process – Employment continued past expiry of probationary period – Applicant sent complaint letter and raised personal grievance alleging bullying by H – H sent applicant email stating did not agree to University placement – Applicant resigned - Authority found no breach of obligation arose from informality of EA - Found applicant resigned because of perception that was bullied by H and had rights affected over course of employment – Found H breached obligation to treat applicant in fair and reasonable manner leading up to and during review meeting – Found H took behavioural incidents beyond reasonable direction about standards to a new employee – Found no basis for H’s conclusion that applicant not safe person to work with – Found H should not have told applicant after hui that had negative energy and no one liked her – Found H breached respondent’s obligations in discussion with D – Found consent given by applicant to speak to referees as part of job application did not extend to disclosing H’s concerns about applicant’s conduct during employment – Found respondent’s code of practice, including confidentiality obligation, applied to both parties – Authority did not accept that applicant’s further complaints about H’s conduct amounted to bullying, as H entitled to monitor applicant’s work closely – Found substantial risk of resignation foreseeable in light of seriousness of breaches - Found continuation of employment relationship was live issue at time due to probationary period and as H expressed uncertainty about applicant’s future employment – Reasonably foreseeable that communication such as email resiling from earlier commitment important to employee might result in resignation – Applicant unjustifiably constructively dismissed – REMEDIES – Found applicant falling asleep during hui was minorly blameworthy conduct – However, not appropriate to reduce remedies further based on applicant’s minor contribution as Authority already moderated compensation award to take account of respondent’s limited resources as incorporated society – Moderate compensation award appropriate - Child Advocate
Result: Application granted ; Compensation for humiliation etc ($6,000) ; Costs reserved
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