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Chandler v Prime Pine Kaikoura Ltd
28 Jan 2009, H Doyle, CA 10/09, (11 pages)
UNJUSTIFIED DISMISSAL – Summary dismissal - Serious misconduct – Co-worker (“D”) pushed applicant – Applicant made racist remark and stated if D put hands on applicant again, would injure D with hammer (“threat”) – Applicant reiterated threat at first disciplinary meeting and did not retract at later disciplinary meeting - Applicant dismissed – Manager at time (“C”) gave evidence would not have dismissed applicant for defamatory and racist language alone - Authority concluded that although dismissal letter stated dismissal for threat and racist language, real reason solely threat – Authority considered whether threat constituted serious misconduct – Found fair and reasonable employer must take relevant circumstances into account in making assessment about conduct and its seriousness – Relevant circumstances were D pushed applicant following heated exchange; applicant requested assistance from C; C initially passed it off as joke and did not respond; applicant and D separately approached C; both subject to disciplinary processes – Threat first made in heat of moment, but later reiterated and not retracted – Fair and reasonable employer would have concluded that threats serious – Respondent had health and safety obligations to D and serious injury could have resulted if threat carried out – Found threat amounted to serious misconduct - Applicant protested D only received final warning as outcome – Authority applied legal test for disparity of treatment – Found conduct arose from same circumstances – Applicant did not physically respond to push, but called C to intercede - Threat was to take matters into own hands if D assaulted applicant again – Authority objectively found disparity of treatment between D and applicant – File note of previous verbal warning to applicant was inadequate explanation for disparity of treatment – Respondent did not conclude that D intended to assault applicant nor find assault was accident – Authority found fair and reasonable employer would not have concluded that threat more serious than assault, as both serious matters – Found no adequate explanation for disparity in treatment – Authority considered whether dismissal justified notwithstanding no adequate explanation for disparity – Found fair and reasonable employer would not have arrived at different disciplinary outcome for D and applicant in circumstances – Dismissal unjustified – REMEDIES – Applicant’s language offensive and racially abusive – Threat intimidated co-workers and impacted on level of trust C and co-workers had in applicant – C previously spoke to applicant about unacceptability of screaming and yelling – Lesser penalty could only have been final warning – Sixty percent contributory conduct – Applicant claimed lost wages from date of dismissal to date of investigation meeting – Applicant received sickness benefit for short period then on unemployment benefit – No evidence of attempts to find other work – Found not a case where Authority would exercise discretion and award more than three months ordinary time remuneration – Awarded thirteen weeks wages, less sixty percent contributory conduct – Quantum to be determined – COSTS – Applicant represented self – Applicant entitled to filing fee - Forklift driver/factory hand
Result: Application granted ; Reimbursement of lost wages (7.8 weeks) ; Disbursements in favour of applicant ($70)(filing fee)
Gallagher v Canterbury Drywall Systems Ltd
12 Dec 2008, J Crichton, CA 189/08, (11 pages)
UNJUSTIFIED DISMISSAL - Misconduct - Three month’s employment - Applicant previously employed by respondent’s governing director (“R”) - Previous employment marred by timekeeping issues - Respondent claimed sought assurances similar issues would not reoccur before applicant employed with respondent - R became concerned about applicant’s timekeeping with respondent - Applicant given verbal warning, with general warning given to all staff - R claimed before written warning issued became aware of claims applicant intimidated other staff - R decided to dismiss applicant because of intimidation - Authority preferred applicant’s supervisor’s recollection of timekeeping as kept contemporaneous record - Authority satisfied timekeeping not as precise as could have been - R right to be concerned and to take steps to address issue - Authority found no evidence of intimidation - Authority found even if applicant asked workmates to cover for him did not intimidate workmates - Authority satisfied dismissal process followed no proper procedure and unfair - Applicant given no opportunity to respond to allegations or put things right - Dismissal unjustified - Remedies - Authority concluded timekeeping failure contributed towards situation that gave rise to personal grievance even though not ground for dismissal itself - Found 33.3 percent contributory conduct - Considering contributory conduct four weeks lost wages and $2,000 compensation appropriate - COSTS - Successful personal grievance claim - Two day investigation meeting - Applicant sought costs to be fixed on daily tariff basis - Respondent sought to have costs lie where they fall - Authority found nothing to discourage Authority from considering matter on daily tariff basis - Calderbank offer not considered as made well before parties engaged in preparation for investigation meeting - In all circumstances costs award of $2,000 appropriate - Plasterer
Result: Application granted ; Reimbursement of lost wages (4 weeks) ; Compensation for humiliation etc ($2,000) ; Costs in favour of applicant ($2,000)
Marfell v Affco NZ Ltd
30 Jan 2009, R Arthur, AA 27/09, (11 pages)
UNJUSTIFIED DISMISSAL – Serious misconduct – Respondent conducted random drug search in accordance with collective employment agreement (“CEA”) - In applicant’s car, dog handler (“W”) located tin containing cannabis and small empty plastic bags commonly used for carrying methamphetamine drug P (“P bags”) – Empty P bags also found in applicant’s handbag – Applicant suspended - Applicant dismissed at end of disciplinary meeting next day - Respondent argued applicant admitted to W tin was applicant’s and contained cannabis – Applicant denied admission, claiming no knowledge tin in car and cannabis belonged to friend – Applicant claimed respondent unfairly applied zero-tolerance policy rather than considering explanation - Issues for determination firstly whether circumstances amounted to “possession” as contemplated by CEA, secondly whether in circumstances fair and reasonable employer would have dismissed applicant - Authority found resolution of both issues dependant on factual finding of whether applicant admitted knowing what was in tin before W showed applicant tin’s contents - CEA stated possession of illegal drugs normally warranted dismissal - No definition of “possession” in CEA – Authority found as matter of construction of CEA, should imply element of knowledge about presence or whereabouts of illegal drugs at workplace by person said to possess them – Found therefore respondent must establish that was cannabis in applicant’s car and applicant knew it was there – Authority noted allegation of serious misconduct such as possession of illegal drugs must be supported by evidence as compelling as the allegation is serious – W gave evidence that applicant admitted tin was hers and said contained cannabis – Plant manager (“G”) and operations manager (“C”) claimed standing nearby and overheard conversation – G and C supported W’s account – Applicant claimed G and C too far away to have heard – Authority preferred evidence of W, G and C – On balance, Authority found G reasonably concluded more likely than not that applicant knew cannabis in car and consequently was in possession of it – Authority found safety-sensitive work environment justified zero tolerance for illegal drugs, but managers required to make assessment of all evidence and circumstances of alleged misconduct - Found applicant’s admissions were central to G’s assessment during disciplinary investigation – Authority accepted G critically assessed evidence and reached honest belief that applicant committed act of serious misconduct to which zero-tolerance policy could reasonably be applied – Found G put aside from consideration that applicant’s partner was Mongrel Mob leader, applicant’s other admissions that used P in past and used cannabis outside work, and rumour applicant dealt drugs in workplace – Authority accepted policy not operated in blanket or automatic manner – Not unreasonable for G to decline to review decision to dismiss applicant following later visit by applicant’s friend who claimed responsibility for possession of drugs – Dismissal justified
Result: Application dismissed ; Costs reserved
McDowall v Hunt Healthcare Group Ltd
8 Feb 2008, G J Wood, WA 14/08, (10 pages)
UNJUSTIFIED DISMISSAL – Serious misconduct – Applicant asked to take on acting charge nurse (“CN”) position while charge nurse on sick leave for two month period – Acting CN duties undertaken in addition to normal registered nurse duties – Respondent intended restructure to disestablish nurse manager (“NM”) and CN roles – New position of Clinical Services Manager “CSM” to replace NM and CN positions – Creation of CSM did not directly affect applicant’s registered nurse position – Disestablishment of position a prospect but had not occurred at time applicant took up acting CN position – Respondent’s operations manager (“C”) based herself at applicant’s worksite due to absence of NM and normal CN – Authority did not accept applicant’s claim that stressed and exhausted because of unfair treatment by respondent – C became aware of first incident where applicant provided tablet to patient although law required prescription by medical practitioner – Authority found incident demonstrated applicant’s lack of understanding of scope of practice – C failed to deal with incident in disciplinary context and instead personally counselled applicant – Second incident where applicant’s cover discovered diabetic patient (“T”) did not have drug chart prescribed by medical practitioner – Evident that insulin incorrectly dispensed to T – C contacted applicant about drug chart and applicant argued drug chart used from T’s previous home – Authority found applicant did not understand not appropriate to use drug chart not prescribed by T’s current doctor (“D”) – Found clear applicant did not understand clear legislative medication administration requirements – Applicant called to disciplinary meeting to discuss incidents – Applicant argued incidents due to fact respondent never had diabetic patient before and staff insufficiently trained to handle scenario – Meeting reconvened where applicant given opportunity to comment and C gave preliminary assessment and conclusions – C considered applicant’s actions reckless and dangerous and applicant had not personally acknowledged any wrongdoing – C stated no confidence in applicant and should be summarily dismissed – Applicant responded co-workers also responsible and wanted opportunity to question all witnesses involved – C called another adjournment then confirmed summary dismissal – C sought assessment of applicant’s actions from Competence Review Panel which found applicant’s actions did not meet required standards of competence for a registered nurse but did not pose risk of serious harm to public – Authority found C entitled to conclude problems raised showed applicant did not meet competence standards for a registered nurse – Dismissal an option reasonably open to respondent given responsibility to ensure nursing staff competent – Applicant primarily responsible for major error in failing to notice absence of chart and subsequently contacting D – Respondent entitled to treat applicant differently from other nurses as applicant experienced senior nurse in position of responsibility – Dismissal justified – Acting charge nurse
Result: Application dismissed ; Costs reserved
Miller v Swazi Apparel Ltd
20 Feb 2008, J Crichton, WA 23/08, (10 pages)
UNJUSTIFIED DISMISSAL – Serious Misconduct – Respondent argued applicant’s behaviour in workplace ongoing issue, however, until incident which led to dismissal issues not dealt with in disciplinary context – Respondent’s director (“H”) gave evidence that on many occasions defused situations where applicant behaved inappropriately towards others – H received complaint about applicant’s behaviour from immediate manager (“K”) – K claimed suffered health issues caused by applicant’s behaviour – H convened disciplinary meeting with applicant to discuss issues – Applicant’s support person claimed respondent’s meeting notes did not accurately record nature of meeting – Authority preferred H’s recollection of meeting – Applicant tabled with Authority letters from co-workers that supported position – Co-workers gave evidence aware of complaint against applicant but not asked to write letters by applicant – Authority found letters provided by two co-workers (“A”) and (“B”) so similar in structure and content that may have suggested co-workers copied each other – Co-workers argued not physically together when letters composed but B claimed saw A’s letter before composed own – H, in making final decision to dismiss applicant, discounted evidence of A and B based on collusion – H argued in concluding serious misconduct interviewed applicant’s previous two managers who confirmed had similar problems with applicant – Authority found in applicant’s performance appraisal prior to complaint from K, applicant’s relationships with customers excellent but way related to colleagues an issue – Applicant notified by respondent that attitude a problem but was not a disciplinary issue – Authority found open to respondent to find letters provided by co-workers not persuasive – Authority found allegation of misconduct properly put to applicant and properly organised disciplinary meeting followed – Respondent argued had obligation to provide K with safe workplace – Authority found sheer quantity of applicant’s response to allegation weakened submission that could not properly deal with allegation because of lack of specificity by respondent – Authority satisfied fair and reasonable employer would have reached decision to dismiss – Application dismissed – Dispatcher
Result: Application dismissed ; Costs reserved
Stevenson v Bentan Twisted Ltd
16 Feb 2009, D Asher, WA 14/09, (13 pages)
UNJUSTIFIED DISMISSAL - UNJUSTIFIED DISADVANTAGE – Applicant claimed respondent’s sole director (“V”) publically alleged on several occasions that applicant responsible for missing money and lost beer – Also claimed V publically demanded applicant return keys - Applicant claimed left workplace as felt unable to stay and was effectively dismissed at this or later point – Applicant’s doctor advised time off work due to stress – Applicant sent V letter suggesting meeting – Applicant received V’s acceptance after meeting date because address on applicant’s medical certificate erroneous – Upon expiry of medical certificates, applicant telephoned respondent to discuss return to work – Applicant advised by co-worker that no longer on roster – Following week, respondent telephoned and was again advised that not on roster – Applicant inferred employment terminated – V argued applicant abandoned employment – V argued did not contact applicant because risked aggravating applicant’s stress and applicant not on roster because possibility that unfit for work – Authority noted if found applicant was dismissed, would follow that dismissal unjustified because no due process or good cause – Authority found respondent’s enquiries and requiring applicant and co-worker to return keys proportionate and legitimate responses to loss of money – Found although applicant embarrassed, respondent’s actions not predetermination, accusation or disciplinary – Authority did not accept respondent deliberately ignored applicant’s communications – Authority accepted V fairly and reasonably restrained from contacting applicant due to concern would aggravate stress – Authority noted applicant did not ask to speak to V, instead erroneously concluding dismissed – Found good faith entailed two-way communication – Found V surprised when told by Work and Income that applicant not employed by respondent, as thought applicant on stress leave – Found applicant’s counsel’s letter alleged unjustified dismissal, rather than enquiring as to employment status – Authority found V’s relative passivity did not amount to deliberate repudiation of employment relationship – No unjustified disadvantage or dismissal - PENALTY – No written employment agreement (“EA”) – Respondent argued intention of s63A Employment Relations Act 2000 (“ERA”) was employee must bring action within year of time aware that not offered written EA prior to orally accepting employment - Authority rejected argument on plain reading of words “reasonably have known” in s135(5)(b) ERA – Also found applicant acted promptly when advised of law - Found absence of written EA did not contribute to applicant’s grievance – Penalty payable to Crown - ARREARS OF WAGES AND HOLIDAY PAY – Parties agreed Labour Inspector to assist arrears claim – Respondent since paid applicant holiday pay for days in lieu, claiming payment out of good conscience, not because conceded monies owed – Authority not satisfied delay in payment was evidence of respondent deliberately attempting to escape obligation, so no penalty imposed – For completeness, Authority directed above arrears be paid to applicant, with interest – Authority found although “pay as you go” holiday pay component specified on payslips, no evidence of agreement for holiday pay to be paid on that basis - Authority obliged to accept applicant’s claim that never agreed to “pay as you go” arrangement and entitled to holiday pay – Parties to agree on quantum with assistance of Labour Inspector – Penalty not appropriate as respondent attempted to meet obligations under Holidays Act 2003 – Authority found Labour Inspector to identify any shortfall leaving parties to settle matter on own terms - Barman
Result: Applications dismissed (Unjustified dismissal)(Unjustified disadvantage) ; Orders made (Arrears of wages and holiday pay) ; Penalty ($500)(Payable to Crown) ; Costs reserved
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