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Hammond & Anor v Bakel's Edible Oils (NZ) Ltd
15 Jan 2007, J Scott, AA 6/07, (12 pages)
UNJUSTIFIED DISMISSAL - Redundancy - Respondent proposed to change employees hours - Changes substantial and envisaged applicants ("H") and ("Y") would need to agree and sign variations - New proposal required applicants work wider span of hours and total weekly hours would be reduced - Increase on hourly rate to compensate for reduced hours - Applicant's put forward questions in relation to proposed changes - Authority found applicants told respondent unhappy with changes - Applicants employment terminated on grounds of redundancy - Restructuring had no affect on number of employees required for operations - Implementation of redundancies unfair - Applicants not given notice redundancy possible - No appropriate consultation on redundancy proposal - Requirement to engage in consultation on redundancy different from consultation on restructure of operations - Second applicant saw changes as significantly reducing leisure/family time - Negative impact of proposal noted but not genuinely addressed - If all reasonable consultation, negotiation and persuasion failed to resolve impasse then would have been justified in considering redundancy - Dismissal unjustified - Applicants submission dismissal amounted to unlawful lockout declined - Tank farm operators
Result: Application granted ; Reimbursement of lost wages ("H")($5,934.00) ; ("Y")($2,350.00) ; Compensation for humiliation etc ("H")($6,000.00) ; ("Y")($6,000.00)
Leggett v McMaster
12 Apr 2007, J Crichton, CA 40/07, (6 pages)
JURISDICTION - Whether accord and satisfaction – Applicant genuinely redundant – Despite genuine attempt, respondent failed to meet procedural fairness obligations – At end of notice period parties agreed extra payment would be made to applicant – Payment in full and final settlement – Deficit cured - UNJUSTIFIED DISADVANTAGE – Discrimination – Alleged respondent failed to deal with verbal abuse and harassment by co-worker as result of applicant's sexual orientation – Co-worker admitted insulted applicant occasionally but claimed simply responding to applicant's behaviour – Respondent acknowledged applicant complained, but only in relation to insults, not sexual harassment – Claimed asked co-worker to behave and later separated men so no longer worked together – Respondent dealt appropriately with complaint – No unjustified disadvantage – Gardener
Result: Application dismissed ; Costs reserved
McCarthy v Centurion GSM Ltd t/a Digital Mobile & Anor
1 Mar 2007, R Arthur, AA 53/07, (15 pages)
UNJUSTIFIED DISMISSAL - UNJUSTIFIED DISADVANTAGE - Redundancy - Respondents submitted applicants employment ended through expiry of fixed term and not by redundancy - Alternatively argued genuine redundancy - Authority found first respondent employed and dismissed applicant - No written employment agreement - Applicant claimed oral terms of employment included rights to shares and directorship - Claimed offered and accepted employment on the basis of shares and directorship, but were removed without his agreement - Totality of evidence did not support applicants claim - Applicant more likely than not, took job because of opportunity to be an investor or partner - Applicant negotiated shareholdings in companies and attempted to obtain loan to pay for shares - Respondent refused to provide financial information, blocking loan and share transfer - Respondent expected applicant to put cash into business - Applicant asked to resign from directorships - Absence of written confirmation regarding arrangement of shareholding supported view that arrangement with applicant was as investor not as employee - Respondent not bound to assist applicant raise loan - Applicant entitled to four weeks annual leave - No reliable evidence of existence of fixed term agreement - No term requiring payment of redundancy compensation - Lack of written agreement meant applicant did not have specific redundancy terms - However, terms in draft EA provided four weeks salary as compensation - Commercial rationale for restructuring weak - Existence or need for position not issue - Issue salary that would be paid for position - No real evidence redundancy was because position no longer required - Respondent failed to provide "significant paper trail" indicating genuine commercial reasons for redundancy - Respondent also claimed incorrectly tendered redundancy compensation and seeks return of payment - Counterclaim unsuccessful - Redundancy unjustified - REMEDIES - Six months salary less ex gratia payment awarded - Regional operations manager
Result: Reimbursement of lost wages ($20,232.77)(6 months) ; Loss of benefit ($7500) ; Arrears of holiday pay ($4410) ; Compensation for humiliation etc ($8,000) ; Costs reserved
Milligan and Ors v IAG New Zealand Ltd
23 Apr 2007, J Wilson, CA 44/07, (14 pages)
UNJUSTIFIED DISMISSAL - Redundancy - Respondent restructured and applicants not reconfirmed in positions - Fair and reasonable process followed to reach decision to dismiss - Applicant's questioned selection process but no evidence process unfair or biased - Open to respondent to decide applicants not best for job - Dismissal justified - UNJUSTIFIED DISADVANTAGE - Respondent failed to properly manage consequences of decision to make applicants redundant - Resulted in more stress and trauma than necessary - Applicants should have had been given opportunity to be represented during process - Respondent's HR manager told Authority she considered supporting applicants her role - HR manager representative of respondent, support person had different role - Unjustifiable action - Applicants' request for penalties declined
Result: Application dismissed (Dismissal) ; Application granted (Disadvantage) : Compensation for humiliation etc ($8,000)(FM) ; ($6,000)(MB) ; ($3,000)(MS) ; Costs reserved
Murray v Lumsden Accommodation Ltd
23 Oct 2007, H Doyle, CA 123/07, (17 pages)
UNJUSTIFIED DISADVANTAGE – Respondent viewed security camera footage from bar – Believed applicant gave away drinks – Also showed her returning after hours with male customer and giving him company shirt – Handed applicant suspension letter when she returned from leave – Fair and reasonable employer, knowing applicant just returned from holiday and unaware of respondent’s concerns, would have discussed justification for suspension with her – Suspension substantively justified, but manner applicant advised of it unjustified – Unjustified disadvantage – UNJUSTIFIED DISMISSAL - Misconduct - After viewing video, applicant accepted some drinks not put through till – Said tired and apologised - Till tapes not provided to applicant – Not enough for respondent to say information never requested – Till tapes and security footage no longer available – Applicant not asked whether friendly with customer she gave drinks and shirt to – Claimed left note saying would pay for shirt but none found - Respondent required to reach conclusion as to whether not charging deliberate or oversight, not simply conclude applicant gave away items – Failure to follow disciplinary procedures in employment agreement – Applicant not given opportunity to comment on respondent’s conclusion or decision to dismiss – Inadequacy of investigation meant fair and reasonable employer would, at time of dismissal, have concluded misconduct and could have given warning, not serious misconduct and summary dismissal – Unjustified dismissal – Remedies – Applicant had also advised bar tab from another hotel should be sent to respondent – Irregular and no authorisation for this – Fair and reasonable employer would have warned applicant about conduct – Very real possibility employment would not have continued beyond trial period – Lost wages limited to remainder of trial period – Contributory conduct 60 percent - Manager
Result: Application granted ; Reimbursement of lost wages ($2,462.98 reduced to $985.20) ; Compensation for humiliation etc ($400)(Disadvantage) ; ($9,000 reduced to $3,600)(Dismissal) ; Costs reserved
Murrie v Higher Ground Drug Rehabilitation Trust
30 Apr 2007, J Scott, AA 130/07, (12 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Respondent provided recovery programme to assist residents maintain abstinence from alcohol and drug use - Drug free policy cornerstone of programme - Drug free criteria same for recovering staff - Applicant attended programme before being employed - Applicant informed respondent contemplated going on anti-depressants - Respondent suggested applicant take herbal remedy - Respondent later advised by another staff member that applicant on psychotropic medication - Applicant aware of requirement to abstain from "mood or mind altering drugs" - Breach of Code of Ethics amounted to serious misconduct - Respondent recognised not situation where summary termination justified - Respondent set out process where applicant could achieve compliance over time - Applicant failed to address fundamental concern of respondent - Refused to take part in disciplinary proceedings - Given applicant's long association with respondent, absence of current contract which specifically spelt out breach and consequences not barrier to respondent’s decision - Applicant understood policy of abstinence both as client and employee - Applicant admitted serious misconduct - Given principle at stake, respondent had no choice but to terminate employment - No evidence to support claim of discrimination on grounds of disability - Applicant dismissed because in breach of contract and refused to take part in disciplinary proceedings - Dismissal justified - UNJUSTIFIED DISADVANTAGE - Applicant not disadvantaged when not offered work above contracted hours - No contractual entitlement to additional hours - Counsellor
Result: Application dismissed ; No order for costs
Sara v D H Bull (1988) Ltd
30 Mar 2007, P Cheyne, CA 34/07, (7 pages)
UNJUSTIFIED DISMISSAL - Constructive dismissal - Applicant claimed respondent breached apprenticeship agreement - Director originally agreed to be assessor - Later changed mind and prevented appointment of another assessor - No breach of duty - Director would not allow tutor to visit during work hours - Being difficult in response to deteriorating relationship - Breach of duty - However, not sufficiently serious to make resignation reasonably foreseeable - Director dissatisfied with applicant's work - Told him to re-evaluate position with respondent - Did not amount to ultimatum - Applicant found new position and resigned - Gave evidence would not have resigned until had other work - Led to conclusion conduct not dismissive - Applicant also claimed respondent's refusal to pay for upcoming course amounted to breach of duty - Could not claim constructive dismissal in anticipation of something that lay well in future - No constructive dismissal - UNJUSTIFIED DISADVANTAGE - No disadvantage arose from preventing tutor's visits - Applicant told to repay respondent full course and manual costs before left - Respondent demanded money or car keys - Conduct angry and abusive - No doubt applicant responded similarly, but responsibility for exchange rested principally with director - Unjustified disadvantage - Remedies - Compensation reflected applicant's comparatively minor contribution to situation - ARREARS OF WAGES AND HOLIDAY PAY - Respondent retained final pay against claim for manual and course fees - Money owing under original fees agreement deducted from arrears owing - Interest 9 percent - PENALTY - Respondent failed to pay arrears even though aware of legal obligations - Circumstances warranted penalty - COSTS - Less than one day investigation meeting - Applicant sought solicitor/client costs of $4,000 - $1,500 award appropriate - Apprentice engineer
Result: Application dismissed (Dismissal) ; Application granted (Disadvantage) ; Compensation for humiliation etc ($1,000) ; Arrears of wages and holiday pay (Quantum to be determined) ; Penalty ($1,000)(payable to Crown) ; Costs in favour of applicant ($1,500)
Wirihana v Alawaya Cartage Ltd
14 Mar 2007, Y Oldfield, AA 69/07, (6 pages)
UNJUSTIFIED DISMISSAL - Constructive dismissal - Serious misconduct - Applicant's truck hit parked car on delivery run - Applicant claimed unfair unpaid suspension forced him to resign - Applicant initially told respondent he was driving at time - Subsequently admitted allowed assistant "off-sider" to drive truck, had accident, and did not stop at scene - Knew assistant did not have licence - Applicant claimed agreed to continue story was driving at time of accident, but changed mind - Managing director ("MD") instructed applicant be suspended and not paid final pay until MD returned from holiday - Applicant resigned - Employment agreement stated insurance excess recoverable from applicant if damage resulted from negligence or wilful act - Suspension made so matter could be dealt with MD when returned - Not reasonable to make applicant wait three weeks without wages without knowing fate - Entitled to fair, complete process and timely answer - Unpaid suspension serious breach of employment agreement - Untenable for applicant to remain at respondent - Constructive dismissal - Dismissal at time of suspension could not have been justified - Not put to applicant that actions serious misconduct or might justify dismissal - Respondent did not have all relevant information - Actions not those of fair and reasonable employer - Remedies - Applicant permitted unlicenced driver to take wheel of vehicle in his care - Contributory conduct 50 percent - UNJUSTIFIED DISADVANTAGE - Applicant claimed disadvantaged when pressured to lie about accident - Supervisor sanctioned suggestion applicant lie about accident - Sanctioning amounted to unjustified action - Unjustified disadvantage - No contributory conduct - ARREARS OF WAGES - Applicant claimed payment in lieu of notice - Entitled to payment in full in accordance with employment agreement - Truck driver
Result: Application granted ; Arrears of wages ($1,530)(Notice) ; Reimbursement of lost wages ($3,968.99 reduced to $1,984.44) ; Compensation for humiliation etc ($6,000 reduced to $3,500)(Unjustified dismissal) ; ($500)(Unjustified disadvantage) ; Costs reserved
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