Personal Grievance - Dismissal - Employment Relations Act 2000
Bridge v Wairau Intermediate School
13 Aug 2007, J Scott, AA 244/07, (26 pages)
UNJUSTIFED DISMISSAL - UNJUSTIFED DISADVANTAGE - Constructive dismissal - Respondent submitted applicant remained an employee on leave without pay - Applicant operated own business in addition to employment - Felt overworked and unwell - Initially granted short term leave without pay but decided to apply for year’s leave to reorganise life - Applicant alleged respondent’s handling of matter unjustified - Request declined by Board but applicant remained on unauthorised leave and did not clarify intentions as requested - Sought review of Board’s decision - Board concerned by ongoing absence and sought meeting to clarify her status - Applicant felt aggrieved and decided could not return to workplace - Sought exit package but matter remained unresolved - Board entitled to reject application for extended leave - Applicant had duty to return to school or clarify intentions but did neither, a breach of contractual duties and duty of good faith - By time met with Board applicant had decided not to return - Although Board agreed applicant would remain on leave without pay pending mediation, Authority found applicant abandoned employment at meeting - Respondent made number of errors managing matter, and while may have caused applicant unhappiness, actions did not cross line to repudiatory conduct - In circumstances, and given applicant’s breaches of duty, mistakes did not amount individually or collectively to breaches that left applicant with no option but to resign and did not unjustifiably disadvantage her - Teacher
Result: Application dismissed ; Costs reserved
Burns v Hirequip Ltd
13 Sep 2007, P Cheyne, CA 113/07, (11 pages)
UNJUSTIFIED DISMISSAL - Constructive dismissal - Applicant alleged exposed to workplace hazard that was actual or potential cause of serious harm - Claimed hazard was overwork and stress, and resulted in heart condition - First raised topic of heart condition and stress with respondent during disciplinary meeting called to discuss performance - Applicant told outcome of disciplinary process would be written warning and requirement to improve - Applicant advised felt no option but to resign due to breach of obligation not to overwork him or cause harm as result of workplace practices - Respondent submitted surprised by this - Warning and lack of response to recent assertion of overwork did not cause resignation - Applicant had decided to resign before second meeting due to belief heart problem caused by workplace stress - Evidence did not establish link to necessary standard and without this difficult to see any breach of duty by respondent - No validity to claims of overwork or lack of resources - No breach of obligations by respondent - No constructive dismissal - Manager
Result: Application dismissed ; Costs reserved
Choveaux v Accident Compensation Corporation
13 Aug 2007, G J Wood, WA 110/07, (21 pages)
UNJUSTIFIED DISADVANTAGE - Applicant alleged respondent failed to provide safe workplace - Applicant’s manager subject of anonymous offensive emails that also mentioned applicant - Respondent attempted to ascertain sender but unsuccessful - Respondent aware applicant more susceptible to emails than average employee - Applicant claimed did not feel safe as appeared sender was co-worker - Raised personal grievance and began own investigation, which involved her breaching confidentiality by providing work documents to external party - Authority accepted not possible to locate sender of emails - Respondent supportive of applicant and provided options to minimise risk - Took all practicable steps to provide safe work environment - No unjustified disadvantage - UNJUSTIFIED DISMISSAL - Abandonment - While pursuing personal grievance over emails applicant’s father found to be as terminally ill - Applicant alleged dismissed for abandonment when respondent knew she was attending bedside of dying father - Manager aware applicant with father but did not pass information on - Good faith obligations in Employment Relations Act 2000, in particular 2004 amendment, placed higher threshold on employers when considering abandonment than previously - Respondent knew applicant had not resigned and was instead trying to resolve safety issue to return to work - Respondent unreasonable to pursue abandonment - Request for applicant to contact HR also related to disciplinary investigation and applicant entitled to have representative - Respondent knew, or ought to have know applicant had genuine reasons for absence and ignored them in order to rely on abandonment policy - Obligations of good faith not met - Alternatively, respondent could not rely on policy as applicant contacted manager and not her fault message not passed on - No fair and reasonable employer would have denied employee leave in circumstances - Applicant dismissed - Dismissal unjustified - Remedies - Reinstatement not practicable as not in applicant’s best interests - Also position no longer required by respondent - Impact on applicant exacerbated by respondent’s response to letter seeking reinstatement which displayed no compassion - Applicant’s approach to investigating email sender contributed to situation, but failure to contact HR did not as respondent unreasonably did not allow representative to act on her behalf - Contributory conduct 20 percent - Assistant
Result: Application granted (Dismissal) ; Reimbursement of lost wages ($1,619.97) ; Compensation for humiliation etc ($10,000 reduced to $8,000) ; Application dismissed (Disadvantage) ; Costs reserved
Dahl v Knight Train Haulage Ltd
10 Sep 2007, R Arthur, AA 278/07, (13 pages)
UNJUSTIFIED DISMISSAL - Whether dismissed or resigned - Applicant alleged sent away following conversation with managing director - Respondent contended applicant resigned - Heated conversation between parties over job - New driver sent to cover applicant’s duties - On balance of probabilities, applicant used words and acted in a way capable of being understood as resignation - However, not clear applicant entered conversation intending to resign, rather led there by director’s unwillingness to consider applicant’s concerns - From subsequent conversation respondent aware applicant had different perception of exchange - Despite this, no attempt to follow up and check situation with cool heads - Fair and reasonable employer would not have relied on intemperate exchange - Dismissal unjustified - Remedies - Lost wages limited to six weeks - Contributory conduct 50 percent - Insufficient evidence relating to leave claims, or allegation applicant owed respondent for fuel purchase - Deductions agreed to - Driver
Result: Application granted ; Reimbursement of lost wages ($2,380)(nett) ; Compensation for humiliation etc ($3,000 reduced to $1,500) ; Costs reserved
Ford v General Storage Ltd
10 Sep 2007, R Arthur, AA 277/07, (13 pages)
UNJUSTIFIED DISMISSAL - Whether dismissed or resigned - Applicant alleged dismissed after providing medical certificate stating unable to work for month due to depression and stress - Applicant subject to probationary period - Altercation over applicant’s suitability for role and provision of training - Applicant talked about leaving job and seeing doctor - Left premises and obtained medical certificate - Respondent responded to certificate with letter stating trial period had ended with applicant’s resignation - Also stated applicant would not be offered permanent position - Applicant emotionally distressed during altercation and more likely than not did say would no longer work for respondent - However given applicant left in “very worked up state” and medical certificate provided shortly after, respondent should have acted with caution to ensure resignation genuine - No evidence respondent made further enquiry of applicant - Letter referring to end of trial period equivocal as to whether resignation occurred - Having not allowed cooling off period, letter “sent away” applicant in manner that amounted to dismissal - Dismissal unjustified - UNJUSTIFIED DISADVANTAGE - Failure to allow “cooling off period” or make further inquiry as to applicant’s intentions amounted to unjustified disadvantage - Remedies - Global award of compensation ; Reimbursement of six months lost wages, less earnings and sick leave - Carpenter
Result: Application granted ; Reimbursement of lost wages and benefits ($14,953) ; Compensation for humiliation etc ($5,000) ; Costs reserved
Fox v Atlas Quarries Ltd
28 Aug 2007, L Robinson, AA 265/07, (10 pages)
UNJUSTIFED DISMISSAL - Constructive dismissal - Applicant alleged forced out of employment - Applicant away from work for nearly a month on sick leave before advised would not be returning - Did not explain reasons for decision - Later raised personal grievance alleging number of incidents took place during employment - Respondent claimed unaware of nature of applicant’s complaints - Matters in applicant’s letter historical and raised out of time - Complaints also so vague as to be incapable of determination - No common connection linking complaints - Respondent had not embarked on course of conduct to coerce resignation - To contrary, even though applicant could be difficult, it sought to retain him as employee - No breach of duty by respondent - No constructive dismissal - Batcher
Result: Application 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
Pirimona & Anor v Wilson & Anor
8 Aug 2007, P R Stapp, WA 109/07, (17 pages)
JURISDICTION - Whether employee or independent contractor - Respondent exercised sufficient control over first applicant and his considerable hours meant integrated into business - First applicant an employee of second respondent - Second applicant claimed employed by first respondents personally - Worked infrequently on casual basis and directed on whether or not could work - Limited records led to conclusion second applicant employee of first respondents - UNJUSTIFIED DISMISSAL - Open to first respondents to cease offering work to second applicant as casual employee - No grievance - Altercation developed between second applicant and respondents and first applicant chose to leave with her - First applicant’s submission he left because upset asked to spy on contractor for respondent not credible given time delay - Applicants’ behaviour, evident at investigation meeting, added significantly to situation - Would have disentitled them to any remedies if had been unjustifiably dismissed - ARREARS OF WAGES HOLIDAY PAY - Arrears of holiday pay due and owing to both applicants - First applicant also owed wages and payment for sick days, but not entitled to payment for unused sick leave - Arrears to be offset by sum already paid by respondent - Caretakers
Result: Application granted (Arrears) ; Arrears of holiday pay ($8967.25)(Payable by second respondent to first applicant); ($381) (Payable by first respondents to second applicant) ; Arrears of wages ($1,417.50 less $1,000)(First applicant) ; Application dismissed (Dismissal) ; Disbursements in favour of applicants ($70)(Filing fee)
Rodwil Enterprises Ltd (previously t/a War Hair Design) v Dominguez & Anor
3 Sep 2007, R Arthur, AA 272/07, (16 pages)
RESTRAINT OF TRADE - Applicant alleged first respondent breached restraint of trade by providing hairdressing services to its former clients at second respondent, 50 metres away - First respondent prohibited from soliciting clients dealt with in preceding six months for three months after employment ended, or competing within three kilometre radius - Restraint reasonable, valid and enforceable - Subsequent agreement entered into by parties after employment ended put beyond any doubt first respondent’s acceptance of reasonableness of restraints - First respondent obliged to honour non-solicitation and non-dealing obligations - Whether respondent “dealt” with clients who followed him to new salon - Evidence established he provided services to clients covered by restraint and later agreement - Remedies - Future loss related to clearly defined period as applicant sold business - Revenue gained by second respondent appropriate measure of loss but revenue from services provided by other stylists to former clients excluded as evidence did not clearly establish respondent “dealt” with those clients - Twenty percent reduction to reflect client turnover - Claim against second respondent for aiding and abetting breach adjourned - UNJUSTIFIED DISMISSAL - Counterclaim - Whether dismissed or resigned - Applicant raised possibility of looking for new job with respondent's owners - Alleged told to finish work that day - Following day applicant sent letter purporting to resign - Appeared parties confused over meaning of conversation - English not applicant’s first language - Confusion over notice period misunderstood as direction to leave immediately - Authority not satisfied events comprised dismissal - COSTS - Length of investigation meeting less than one day - Costs of $1,500 reasonable - Hairdresser
Result: Application granted ; Damages ($3,012) ; Interest (10.76%) ; Counterclaim dismissed ; Costs in favour of applicant ($1,500)
Scoles v Nga Clarke's Ltd t/a Black Swan Tea Rooms & Motels
7 Aug 2007, P Montgomery, CA 93/07, (11 pages)
UNJUSTIFIED DISMISSAL - Whether dismissed or abandoned employment - Discontent between employees, including applicant, and supervisor led to employees taking unauthorised break - Respondent claimed instructed employees to return to work, otherwise “may as well go home” - Applicant left premises but claimed expected to return to work next day - Respondent later told her she had “sacked herself” by walking off - Circumstances did not fall under abandonment provisions in employment agreement - Respondent submitted failure to follow instruction to return to work provided justification for termination - Clear at time employment ended respondent relied on applicant’s leaving work rather than refusal to obey instruction - Fair and reasonable employer would have investigated why applicant left premises before considering penalty - Dismissal unjustified - Remedies - Contributory conduct 20 percent - Ability to recover lost wages limited as applicant had already given notice of resignation - UNJUSTIFIED DISADVANTAGE - Applicant alleged hours unilaterally reduced - Respondent contended hours reduced by agreement due to applicant’s pregnancy - No evidence to support unilateral change to hours - No unjustified disadvantage - SEXUAL HARASSMENT - Applicant claimed respondent did nothing when she complained about male employee staring at her breasts - Respondent claimed spoke with employee and informed applicant of this by letter - Respondent addressed matter appropriately - However, by not confirming letter received, applicant left with view nothing done - Applicant disadvantaged by failure but it fell short of being unjustifiable - Hospitality worker
Result: Application granted (dismissal) ; Compensation for humiliation etc ($3,000 reduced to $2,400) ; Application dismissed (Disadvantage, sexual harassment) ; Costs reserved
