Breach of Contract - Employment Relations Act 2000
Drummond v National Union of Public Employees Inc
10 Aug 2007, P Cheyne, CA 100/07, (24 pages)
UNJUSTIFIED DISADVANTAGE - Respondent unilaterally varied employment agreement by reducing applicant’s hours - Applicant entitled to reject purported variation and insist on proper performance of agreement - Entitled to full salary from date of reduction - Authority determined applicant had raised grievance about issue - Unjustified disadvantage - Remedies - Applicant contributed to circumstances giving rise to disadvantage as misled respondent about salary when it took over his previous employer - Contributory conduct 60 percent - UNJUSTIFIED DISMISSAL - Misconduct - Breach of duty of fidelity - Parties relationship deteriorated, number of disciplinary investigations begun but reasonable in circumstances - Applicant dismissed for involvement in establishment of rival union - Conclusion open to reasonable employer - Dismissal justified - Claim for redundancy compensation and arrears of holiday pay dismissed - BREACH OF CONTRACT - Counterclaim - As counterclaim conditional on finding applicant entitled to redundancy compensation, not taken further by Authority - Union organiser
Result: Application granted (Disadvantage) ; Reimbursement of lost wages (Quantum to be determined) ; Compensation for humiliation etc ($5,000 reduced to $2,000) ; Application dismissed (Dismissal, Arrears of holiday pay, Redundancy) ; Counterclaim dismissed ; Costs reserved
Hazelden v Howick Village Optometrists Ltd
31 Oct 2007, M Urlich, AA 342/07, (17 pages)
UNJUSTIFIED DISMISSAL - Constructive dismissal - Applicant alleged pressured to return to work before injury healed and faced unfair scrutiny upon return - Claimed respondent’s management of issues around injury, disciplinary action, and inquiry into data entry error required her to leave employment - Respondent made efforts to ascertain extent of injury and applicant’s absence - Although stressful for applicant, actions not unreasonable - No evidence to support claim returned to work too soon - Applicant received written warning after asked junior employee to run personal errand - Disciplinary process and warning deficient and Authority expressed concerns - However, no grievance raised in relation to it and matter not taken further - Received letter about another meeting to discuss data entry error - Nothing to indicate meeting disciplinary - Applicant took sick leave due to stress - Respondent claimed surprised at applicant’s health issues and sought indication when she would return - Applicant resigned - Given discrete nature of events and time involved, course of conduct designed to coerce resignation could not be established - No explanation why concerns not raised with respondent - Applicant could not conclude on basis of second letter that meeting could result in threat to employment - Follow up letters from respondent not unreasonable - As concerns not raised with respondent, difficult to see how resignation could be foreseeable - No constructive dismissal - PENALTY - Applicant sought penalty for failure to provide written employment agreement - Application declined - No evidence lack of written agreement created a problem between parties - BREACH OF CONTRACT - Counterclaim - Lack of notice - Claim baseless given respondent failed to clearly state terms of employment in writing and no evidence of damage consequent to breach - Receptionist
Result: Application dismissed ; Counterclaim dismissed ; Costs reserved
LJS Employment Ltd v Mitchell
15 Aug 2007, R Arthur, AA 251/07, (7 pages)
BREACH OF CONTRACT-– Applicant sought reimbursement of training costs and damages for failure to give adequate notice - No appearance by respondent - Short term employment - Respondent accepted job but on fifth day of work rang in sick - Following week advised would be remain absent - Applicant sought disciplinary meeting to discuss unwillingness to work and lying about cause of injury - Respondent did not attend and advised would return uniform - Applicant considered employment abandoned but also wrote to respondent accepting her resignation - In reliance on terms of employment agreement, sought pay in lieu of notice and reimbursement of training costs - Employment agreement referred to forfeiting pay - Terms did not extended to requiring employee to pay compensation from own resources – Training provided by applicant related to routine systems of work - Applicant accepted respondent doing work while being trained - If respondent ordered to pay week’s ordinary pay net effect would be no pay for hours worked over the four days of her employment - Inconsistent with intent of Minimum Wage Act 1983 - Previous Authority determination found respondent’s requirement to repay training costs amounted to prohibited payment of premium for employment - Claim for two weeks pay dismissed - Employment agreement allowed for deductions from final pay - Small amount of holiday pay owing to respondent to be forfeited to applicant for failure to give adequate notice
Result: Application granted in part ; Orders accordingly ; No order for costs
Panel Holdings Ltd v Paki
3 Aug 2007, D King, AA 232/07, (13 pages)
BREACH OF CONTRACT – No appearance by respondent – Medial certificate treated as de facto application for adjournment by Authority but further information not provided – Attempt to frustrate process - Applicant alleged respondent breached employment agreement by giving inadequate notice, entering into unauthorised transactions and altering or removing company documents - Respondent had sole charge of administrative and accounting processes – Anomalies came to applicant’s attention – Respondent took sick leave but continued to access accounting system – Entered premises and replaced employment agreement with one containing more favourable terms – Resigned without returning to work, but continued to access company bank account via internet – Audit uncovered $32,000 of unauthorised expenditure, including purchases from Trade Me and personal bills – Attempts to contact respondent unsuccessful – Resignation letter gave notice “per the terms of my contract, effective today” – “Effective today” meant notice began from that date, notice not inadequate – Breached employment agreement by making unauthorised payments for own benefit, and removing and altering documents – Also falsified company records to disguise transactions and increase leave entitlement – Respondent to reimburse applicant – PEANTLY- Respondent’s actions unlawful and punitive action deserved – Behaviour ongoing over lengthy period of time - $5,000 penalty appropriate for each of three breaches – Respondent had raised constructive dismissal claim but failed to supply amended statement of problem - Counterclaim dismissed – Office manager
Result: Application granted ; Damages ($32,813.68) ; Penalty ($15,000) ($7,500 payable to Crown, $7,500 payable to applicant) ; Counterclaim dismissed ; Costs reserved
Rasmussen v Medlab Central Ltd
28 Sep 2007, J Crichton, WA 133/07, (12 pages)
COMPLIANCE ORDER - DISPUTE - Applicant sought compliance with collective employment agreement (“CEA”) - Alleged incorrectly classified as medical laboratory assistant instead of medical laboratory scientist - Submitted CEA required she be paid as scientist as she had qualifications required by scientist coverage clause, notwithstanding fact originally appointed as assistant and irrespective of work actually performed - Respondent argued nothing prevented it from remunerating employees based on work performed and applicant’s work fell within terms of assistant - On evidence, applicant performing work of scientist and covered by scientist clause in CEA - Applicant entitled to declaration she be paid as medical laboratory scientist, entitled to back pay from date she met all qualifications for role - PRACTICE AND PROCEDURE - Respondent alleged proceedings begun more than six years after cause of action arose - Argument made out, however, applicant only met qualifications required by CEA for previous two years and limited her claim accordingly, so claim able to proceed - BREACH OF CONTRACT - Applicant’s allegation failure to recognise her as scientist breached terms fair and reasonable treatment already dealt with by application of CEA - Additional claim of disparity of treatment - Scientist hours available on other shifts but applicant unable to change shifts due to family commitments - Considered respondent should have reassigned scientist hours to her shifts as appeared to have done for other employee - Authority accepted other employee in “personal to holder” situation - No breach of contract or fair and proper treatment requiring compensation for non-economic loss - Medical laboratory scientist
Result: Application granted in part ; Orders accordingly ; Costs reserved
