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Clarke v PPCS Ltd
30 Mar 2007, L Robinson, AA 98/07, (8 pages)
UNJUSTIFIED DISADVANTAGE – Applicant worked at meat processing plant - Received medical clearance to return to work after surgery – Respondent’s health and safety representative concerned about applicant’s return to full time “A grade” duties – Respondent alleged work history indicated average of four injuries per year – Concerned applicant would reinjure himself and could not guarantee his health and safety in A grade role – Refused to allow applicant to return to A grade work – Directed to perform other duties at reduced remuneration – Applicant did not accept work history indicated greater risk of injury - Union concerned rights under Injury Prevention, Rehabilitation, and Compensation Act 2001 breached – Occupational therapist concluded applicant should not perform A grade work – Copy of report not provided to applicant – Applicant felt penalised for early reporting of injuries - Decision applicant would not perform A duties made before consulting him – Applicant told of decision and never invited to discuss matter – No reason could not have been consulted before return to work – Authority unconvinced respondent’s concerns well founded and did not accept its criticism of doctor’s report giving clearance – Respondent had no medical advice to justify rejection of report – If applicant deemed unable to perform tasks was either incapacitated or surplus to requirements – Either event required further enquiry and consultation – No scope under collective employment agreement to alter applicant’s grading classification - Applicant entitled to retain A grade classification and be paid accordingly – Manner respondent decided to change classification unfair – Breach of duties owed to applicant – Unjustified disadvantage - Length of service ten years four months - Meat processor
Result: Application granted ; Reimbursement for lost wages (quantum to be determined by parties) ; Compensation for humiliation etc ($5,000) ; Costs reserved
Haapu v Cityline (NZ) Ltd
14 Sep 2006, L Robinson, WA 124/06, (10 pages)
UNJUSTIFIED DISADVANTAGE - Applicant claimed two previous warnings unjustified - Warning issued when applicant admitted abandoning bus with engine running - Authority considered respondent dealt with matter in very generous way - Second warning for taking adult fare but issuing child ticket - Applicant claimed mistake and not wilful - Respondent entitled to issue warning and put applicant on notice conduct unacceptable - No unjustified disadvantage - UNJUSTIFIED DISMISSAL - Serious misconduct - Summary dismissal - Respondent began investigation into alleged misuse of "transfer off" key but dismissed applicant for theft - No evidence of theft and respondent not entitled to reach that conclusion - Also, respondent maintained applicant failed to follow procedure but Authority found no clear procedure communicated to employees - Delay in putting allegations to applicant unfair and prejudiced ability to respond - Not persuaded dismissal met Honda standard - Dismissal unjustified - Remedies - Unsafe to regard frequent use of "transfer off" key as blameworthy conduct - Dismissal severable and independent from warnings - Reinstatement ordered - Recommendation respondent attend to informing employees in relation to issue of transfer tickets and paper feed operations, and record procedures in writing - Suggestion applicant would benefit from retraining - Applicant's adjudication for bankruptcy did not prohibit her seeking Authority's assistance - Length of service not specified - Bus driver
Result: Application dismissed (Unjustified disadvantage) ; Application granted (Unjustified dismissal) ; Reinstatement ordered ; Reimbursement of lost wages (Quantum to be determined by parties) ; Compensation for humiliation etc ($5,000) ; Recommendation ; Costs reserved
Langman v Ludowici Packaging Ltd
10 Oct 2006, D Asher, WA 133/06, (12 pages)
UNJUSTIFIED DISMISSAL - Redundancy - Whether redundancy genuine - Applicant believed dismissal predetermined because of conspiracy and incompatibility - At investigation meeting accepted no compelling evidence to support allegation - Position terminated for financial reasons - Applicant instructed advocate to pursue exit package - Position severely limited outcome - Dismissal justified - However, absence of fair process meant applicant unjustifiably disadvantaged - UNJUSTIFIED DISADVANTAGE - Process employed by respondent unnecessarily hurried, applicant dismissed one week after informed of restructuring proposal - Respondent declined to accept applicant's proposed exit package - Overall tenor of communication and absence of invitation to respond meant respondent's reply not counter offer but notice of termination - Departure date suggested by advocate - Applicant distress at date caused by advocate, not respondent - Respondent departure date chosen to enhance applicant's re-employment opportunities - Reasonable for applicant to have input into this - Fair and reasonable employer would have expressly advised applicant exit package not acceptable and, in absence of alternate proposal, intended making position redundant - Also would have advised whether applicant's proposal to attend mediation acceptable, and if not, why - Failure especially significant because employment agreement provided any party could seek mediation assistance - Unjustified disadvantage - Remedies - Much of evidence in support of compensation claim based on belief of conspiracy - Entitled to compensation for respondent's failure to meet contracted obligation to undertake mediation and unfair haste of redundancy - Length of service nine months - Customer services supervisor
Result: Application dismissed (Unjustified dismissal) ; Application granted (Unjustified disadvantage) ; Compensation for humiliation etc ($4,000) ; Costs reserved
Maiden v Maihi
22 Sep 2006, PR Stapp, WA 128/06, (3 pages)
ARREARS OF WAGES - Not constructive to direct parties to mediation as respondent put condition on attendance that was unacceptable to applicant - No statement in reply and respondent failed to supply wage and time records as requested - Respondent's attendance at investigation only resulted from Authority contacting him on the day, and he failed to co-operate with investigation meeting - Acknowledged ripped up papers when served - Applicant worked one day as casual employee - No written employment agreement and neither party had any idea of agreed rate of pay - Authority accepted applicant's pay rate calculation as respondent could not produce details of national rate - COUNTERCLAIM - Authority did not deal with respondent's argument owed money for applicant's use of shearing equipment as no evidence of agreement on payment - Arrears due and owning - Interest 9 percent - UNJUSTIFIED DISADVANTAGE - Respondent's actions in not paying applicant unjustified - However, applicant not disadvantaged because only employed one day and problem could be resolved as recovery of wages - No unjustified disadvantage - Length of service one day - Shearer
Result: Application granted (Arrears of wages) ; Arrears of wages ($138.60) ; Interest ($8.95)(9%) ; Application dismissed (Unjustified disadvantage) ; Disbursements in favour of applicant ($70)(Filing fee)
McKenzie v Hawksbury Community Living Trust Inc
5 Sep 2006, H Doyle, CA 134/06, (7 pages)
UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Serious misconduct - Summary dismissal - Dismissed for habitual lateness and failure to report lateness as required by previous warning - Earlier verbal warning for sleeping during shift justified - Authority did not accept applicant given ultimatum to drop mediation about verbal warning or be dismissed - Written warning for failure to record lateness on timesheet justified - Warned falsifying timesheet serious and could lead to dismissal - Lateness was less serious allegation and warning about possibility of dismissal not repeated - Dismissed when late twice more and failed to notify manager - Authority not satisfied sufficient focus by respondent on applicant's lateness and probably too much emphasis on previous disciplinary action for other issues - Fair and reasonable employer would not have concluded three incidences of unacceptable lateness constituted habitual lateness and serious misconduct - Failure to notify manager did not on its own amount to serious misconduct justifying dismissal - Dismissal unjustified - No unjustified actions that required separate remedy - Remedies - No policy about disciplinary action respondent could impose - Fair and reasonable employer would have given warning in terms of lateness and failure to notify manger - Contributory conduct 30% - Length of service six years - Caregiver
Result: Application dismissed (Unjustified disadvantage) ; Application granted (Unjustified dismissal) ; Reimbursement of lost wages (3 months less earnings)(reduced by 30%) ; Compensation for humiliation etc ($5,000 reduced to $3,500) ; Costs reserved
Rance v Christchurch City Council
14 Aug 2006, J Crichton, CA 123/06, (15 pages)
UNJUSTIFIED DISADVANTAGE - Applicant claimed respondent failed to provide safe workplace, and breached employment agreement - Applicant's team under resourced - Due to applicant's concerns immediate manager ("G") recommended secondment - Manager ("P") declined recommendation - Denied G told her applicant stressed - G sent applicant email that team members unhappy with his management - Suffered breakdown and took sick leave for almost a year - Returned to work in lower salaried role - Whether applicant fulfilled legal obligations to notify respondent of situation and extent respondent knew of situation - G reluctant to articulate to senior management conclusion applicant stressed - Not necessary employers receive explicit notification using appropriate terminology - Where evidence suggested employer received message and endeavoured to do something about it, matter put beyond doubt - Occupational report assessed applicant as exhibiting "dangerous levels of stress" - Report disseminated before P and HR manager employed and not widely circulated - No evidence other senior managers made aware of applicant's stress - Secondment proposal turned down as respondent's policies and procedures not followed - Had message applicant needed help got through, respondent would have immediately taken steps to protect him - Either senior management not told about applicant's ill health or what was told not sufficiently graphic - Onus on respondent to ensure its systems and human resourcing did not subject employees to stress - Evidence failed to disclose work inherently stressful - Applicant not, by virtue of doing more work than otherwise expected, doing inherently stressful work - Fact G knew and acknowledged applicant's distress pivotal - Medical advice showed workplace stressors material factor of illness - Respondent knew or ought to have known of significant harm applicant faced - Unjustified disadvantage - Remedies - All three causes of action relied on same facts - Sufficient to apportion remedies in relation to personal grievance - Grievance caused diminution of sick and annual leave entitlement - Parties directed to identify value of leave lost and agree basis for reimbursement - Awarded lost wages equivalent to shortfall between old and new lower salaried role for one year - Length of service 21 years until alleged disadvantage - Engineer
Result: Application granted ; Orders accordingly ; Reimbursement of lost wages ($20,000) ; Compensation for humiliation etc ($12,500) ; Costs reserved
Rongonui & Anor v P Te Whata & Anor
15 Feb 2007, P Cheyne, CA 17/07, (6 pages)
PRACTICE AND PROCEDURE - Identity of employer - Applicant signed "agreement to contract" - Employer named on contract not Maori incorporation, as claimed by respondent, or other legal entity - Respondents clearly controlled shearing gang, and signed agreement - Applicant entered legal relationship with respondents trading as employer named in contract - Authority made order identifying respondents by full names - JURISDICTION - Whether employee or independent contractor - Although contract in language of contract for services and negated several usual incidents of employment, applicant not working on own account - Had no control over work conditions - Work integral to respondents business - Real nature of relationship employment - Employee - Applicant made submissions about fairness of terms and circumstances in contract - If had found relationship not employment, s6 Minors' Contract Act 1969 would have applied since applicant young (16 years old) - UNJUSTIFIED DISMISSAL - Applicant claimed threatened with violence - Left job after sworn at but agreed to return - Parties later argued about getting sheep into shed - Applicant said not his job - Told to leave and not come back - Initiative for termination of employment came from respondent - Words used could constitute dismissal and did so in circumstances - Nothing about respondent's response could have constituted actions of fair and reasonable employer - Unjustified dismissal - UNJUSTIFIED DISADVANTAGE - Given unjustified dismissal finding unnecessary to deal with disadvantage claim - ARREARS OF WAGES AND HOLIDAY PAY - Arrears of holiday pay due and owing - Respondent made "charitable tax" deductions from applicant's wages - Deducted wages due and owing, unless respondent could account for it by proving payment made to Inland Revenue - Length of service two weeks - Shearing gang presser
Result: Application granted ; Compensation for humiliation etc $2,000 ; Arrears of wages ($239.42)(charitable tax deduction) ; Arrears of holiday pay ($68.41) ; 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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