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ABB Ltd v Dohrman
4 Sep 2006, RA Monaghan, AA 280/06, (9 pages)
DISPUTE - Applicant sought declaration instruction to respondent lawful and reasonable, and order respondent comply with instruction and perform duties under employment agreement - Applicant provided engineering and maintenance services to clients on site - Previous three years respondent worked for one client - Instructed to work for another client - Refused and received written warning - Refused because of health and safety concerns, belief other options available and thought move would be backward step for him - Applicant alleged new site stressful - Authority did not accept risk to respondent's health arose from new site - Nothing in work or behaviour of employees at new site that could be reasonable described as unsafe or creating an unsafe environment - Respondent really saying did not want to work at new site because did not like it there - Interactions respondent objected to not outside normal range of workplace interactions and could not reasonably be described as workplace hazards from which respondent must be protected - Decision made for genuine business reasons - Not open to respondent or Authority to substitute their views on appropriate deployment of staff for applicant's - Respondent intransigent and unreasonably dismissive of applicant's efforts to address concerns - Applicant's instruction to respondent lawful and reasonable - However, in circumstances Authority did not consider it wise to order respondent to comply with instruction - Not in either party's interests to attempt to force respondent to work on site to which so rigidly objected - Order for compliance not considered practical solution - Better for respondent to acknowledge applicant entitled to instruct him to work at new site and risked dismissal if did not - Parties directed to mediation - Length of service 26 years - Engineer
Result: Question answered in favour of applicant ; Parties directed to mediation ; Costs reserved
New Zealand Air Line Pilots Association Inc v Air New Zealand Ltd
19 Sep 2006, R A Monaghan, AA 298/06, (8 pages)
DISPUTE - Respondent leased aircraft to operate international cargo service - Crew provided as part of "wet lease" - Pilots alleged failure to allow them to operate leased aircraft breached collective employment agreement ("CEA") - Respondent claimed aircraft only available with wet lease - Authority accepted genuine commercial reasons for decision and not attempt to bypass pilot's rights - Applicant believed respondent diminished pilots' job prospects by not offering them positions on freight operation - Contended lease not "short term" as allowed by CEA, and concerned would be renewed - No evidence to indicate respondent planned longer commitment to lease - Disputed clauses already subject to judicial consideration - If stare decisis applied to institutional structure created under Employment Relations Act 2000 Authority bound by interpretation found in Fransham and Others v Air New Zealand Ltd (cited below) - Authority accepted elements of issue estoppel present - Union party acting as applicant rather than affected individual members sufficient to meet requirement that parties to judicial decision, or their privies, be same - Court's interpretation of clauses applied to present facts - Prior to arrangements for wet lease none of respondent's pilots employed in dedicated international cargo operation - Pilot's security and job prospects remained at least as good as were, and not diminished - Conclusion about affect on pilots' prospects meant no need to address whether lease "short term" - Authority declined to make declarations sought - Applications for penalty and compliance orders declined
Result: Application dismissed ; Question answered in favour of respondent ; Costs reserved
Ramsay v Stephen Funeral Home Ltd
27 Sep 2006, P Cheyne, CA 143/06, (7 pages)
UNJUSTIFIED DISMISSAL - Poor performance - Number of errors in work raised with applicant and possibility of dyslexia discussed - When applicant later called to meeting she declined offer to bring support person because unaware performance management process in employment agreement being invoked - Parties met to discuss progress after applicant attended dyslexia course - Respondent offered help and brought further mistakes to applicant's attention - Applicant aware would be final review and dismissal possible - Applicant dismissed and chose to be paid out notice - Attention to detail important part of position - Objectively, duties not discharged to respondent's satisfaction - Actions when initiating review not those of fair and reasonable employer - However, lapse not sufficient to vitiate otherwise proper process - Applicant alleged predetermination but Authority accepted respondent open to applicant demonstrating required accuracy after course - Applicant argued fair and reasonable employer would not have dismissed because mistakes caused by dyslexia - Not dismissed for misconduct, but on notice after being given reasonable opportunity to demonstrate could fulfil essential part of work - Respondent made reasonable efforts to assist and support applicant, although not always recognised or welcomed e.g. suggestion applicant take sick leave, instead of annual leave, to attend course - No link between applicant declining business offer from respondent and performance concerns - Overall, actions those of fair and reasonable employer - Dismissal justified - DISCRIMINATION - Authority did not accept applicant discriminated against because of dyslexia - Applicant dismissed because unable to meet reasonable standard of accuracy in work - DISPUTE - Evidence fell short of establishing promise by respondent to pay some or all of dyslexia course costs - Claim for reimbursement of course costs rejected - Length of service nine months - Funeral director and embalmer
Result: Application dismissed ; Costs reserved
Spink v APN New Zealand Ltd
13 Sep 2006, D Asher, WA 122/06, (7 pages)
PRACTICE AND PROCEDURE - During investigation meeting parties settled part of grievance - Applicant withdrew claims relating to deduction from wages in return for payment from respondent - UNJUSTIFIED DISADVANTAGE - DISPUTE - Applicant claimed disadvantaged and sought declaration entitled to redundancy compensation - Applicant’s position no longer required after restructure - Pursuant to employment agreement respondent required applicant to revert to former role - Applicant claimed offer did not amount to “suitable alternative employment” and therefore entitled to redundancy compensation - Suitability of alternative position to be determined objectively - Applicant’s role post restructuring substantially similar to work undertaken prior to restructuring - Location, hours, pay and daily duties unchanged - Only change was applicant could no longer use title of deputy shift supervisor - Suitable alternative employment - No unjustified disadvantage - Applicant not entitled to redundancy compensation - Length of service seven years - Printer
Result: Application dismissed ; Costs reserved
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