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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
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
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
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
Morgan v The Chief Executive of the Department of Corrections
18 Feb 2008, D Asher, WA 21/08, (11 pages)
PRACTICE AND PROCEDURE – Application for removal to Employment Court (“EC”) - Applicant claimed unjustifiably suspended – Sought urgent removal to EC on ground that important question of law central to resolution – Respondent argued suspension justified and opposed removal to EC – Respondent issued letter to applicant setting out allegations – Allegations at time of investigation meeting related to misappropriation of gym funds and misuse of department vehicle – Applicant placed on special leave with pay while respondent considered whether suspension appropriate during respondent’s investigation – Applicant called to meeting following week where suspended on full pay while allegations investigated - Applicant claimed important question of law arose as to employer’s right to suspend where employment agreement did not provide for suspension – Authority accepted respondent’s submission legal position clear that express contractual provision not required in order to suspend employee on pay while conducting investigation – No important question of law to be answered – Application for removal declined – UNJUSTIFIED DISADVANTAGE – Authority found express contractual provision not legally required to suspend applicant on pay while conducting investigation – Applicant aware respondent’s human resources policy allowed for suspension – Found respondent complied with policy – Fair process followed at suspension meeting and afterwards – Respondent properly regularly reviewed decision to suspend – Seriousness of allegations and applicant’s managerial position meant applicant’s presence may have hampered respondent’s investigation – Continuing suspension reasonable considering necessary protection of applicant, other staff, inmates and visiting members of public to prison – Found employers entitled to inquire into conduct of employee clubs – Respondent’s six month investigation lengthy but not unjustified – No evidence to support applicant’s claim of disparity of treatment or that respondent pursuing agenda against applicant – Suspension was and remained justified - Prison unit manage
Result: Application dismissed ; Costs reserved
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
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
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
Svensson v ANZ National Bank Ltd
15 Feb 2008, P Montgomery, CA 14/08, (5 pages)
UNJUSTIFIED DISADVANTAGE – Respondent sought to change applicant’s hours of work from 30 hours per week over four days to 30 hours per week over five days – Applicant claimed respondent not entitled to make changes without applicant’s agreement and that unjustifiably disadvantaged in employment – Applicant worked shorter hours for health reasons – In 2005 employment agreement (“2005 EA”), respondent introduced new term (“term”) that “current hours/days of work cannot be changed unless you agree” – Term not included in subsequent 2006 employment agreement (“2006 EA”) – Authority noted employers have right to reorganise business to become more efficient or enhance customer services, provided undertake genuine consultation process with affected staff and consider their views – Found critical issue in circumstances was breach of term requiring applicant’s agreement to change – Respondent argued that 2006 EA superseded term in 2005 EA – Authority found new document related only to salary matters, and express and explicit term in 2005 EA not vitiated by 2006 EA – Found if fair and reasonable employer wished to remove term from future agreements, obliged to at least draw employee’s attention to term’s absence before signing new agreement – Although respondent’s proposed changes to applicant’s hours were justifiable, applicant disadvantaged by respondent’s failure to secure applicant’s agreement to change – Disadvantage unjustified - Remedies – In ongoing employment relationship and to encourage successful employment relationships, Authority directed parties to resolve issue of compensation themselves – Bank Customer Service Officer
Result: Application granted ; Orders made
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
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