Personal Grievance - Dismissal - Misconduct - Employment Relations Act 2000
Cole v Axiam Plastics Ltd
25 Sep 2007, D Asher, WA 132/07, (8 pages)
UNJUSTIFIED DISADVANTAGE - Disciplinary meeting held after applicant brought air gun to work and fired “some rounds” - Applicant claimed given choice between demotion or dismissal - Respondent contended prepared dismissal letter but decided in circumstances final warning more appropriate - Denied applicant ever permanently appointed to supervisor position so no demotion - Appointment to supervisor position on trial basis only - After investigation into air gun incident respondent fairly and reasonably concluded applicant not suitable for position and remove him from it - Not unjustifiably disadvantaged by demotion - UNJUSTIFIED DISMISSAL - Misconduct - Applicant dismissed after altercation with manager while trying to obtain employment file - Witness evidence supported contention applicant threatening and verbally abusive - Having regard to serious misconduct with air gun, decision to dismiss reasonable - Not necessary to make finding as to fairness of process as contributory fault would disentitle applicant to any remedies - Dismissal justified - Process worker
Result: Application dismissed ; Costs reserved
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
Harris v Bay Truck Wash Ltd
17 Oct 2007, J Scott, AA 325/07, (13 pages)
UNJUSTIFIED DISMISSAL - Misconduct - Applicant previously alleged unjustifiably dismissed - Mediated settlement provided for applicant’s return - However, prior to return respondent advised applicant could not guarantee safety in workplace - Applicant filed dismissal claim in Authority - Authority initially considered only remedy available was compliance with original settlement - However, respondent’s director indicated would end his life if forced to pay applicant money - Authority decided would not endorse settlement as appeared respondent had not consented - As no settlement, grievance could be investigated - Matter transferred to different Member - Parties interviewed separately - Significant conflict of evidence - Confrontation over applicant’s washing of trucks - Applicant alleged left as considered director becoming abusive - Sought meeting to resolve issues - Subsequently received dismissal letter and final pay - Respondent claimed applicant ignored instructions and took swing at director - Authority did not accept applicant tried to hit director, but concluded both parties at fault over confrontation - Respondent failed to recognise cooling off period required - No fair process - Dismissal unjustified - Remedies - Applicant had no respect for director and ignored instructions - Walking off job not an attempt to de-escalate tension and not conciliatory action - Contributory conduct 25 percent - Lost wages limited as failed to sufficiently mitigate loss - COSTS - Length of investigation meeting not specified - Respondent’s conduct significantly added to applicant’s legal costs - Costs of $4,000 appropriate - Truck washer
Result: Application granted ; Reimbursement of lost wages ($7,718.27 reduced to $5.788.71)(3 months) ; Compensation for humiliation etc ($5,000 reduced to $3,750) ; Costs in favour of applicant ($4,000)
McKenzie v Ogilvy New Zealand Ltd t/a Advertising Works Ogilvy Ltd
29 Aug 2007, M Urlich, AA 267/07, (5 pages)
UNJUSTIFIED DISMISSAL - Misconduct - Applicant previously warned about performance - Accidently copied internal email correspondence to client - Contained statement potentially derogatory of client - Did not report incident as considered client accepted apology - In second email to colleague, also copied to client, applicant called client’s requested changes “ridiculous” - Claimed merely repeating client’s description - Client complained about emails and asked applicant be removed from account - Respondent held management meeting without applicant and decided to dismiss him - Did not consider disciplinary process set out in employment agreement - Applicant given letter detailing summary dismissal - Some discussion about incident but respondent not able to demonstrate dismissal came close to meeting standards of fair process - Respondent conceded this at investigation meeting - Dismissal unjustified - Remedies - Applicant’s evidence as to reasonableness of emails not accepted - Respondent entitled to see behaviour as serious misconduct - Difficult for Authority to accept applicant unable to mitigate lost wages given skills - Global award of $1,500 appropriate - Account executive
Result: Application granted ; Compensation for humiliation etc ($1,500) ; Costs reserved
Paki v Levin Meats Ltd
26 Sep 2008, P R Stapp, WA 128/08, (15 pages)
UNJUSTIFIED DISMISSAL – Serious misconduct – Respondent argued applicant organised illegal strike action, breached duty of loyalty and fidelity through comments to media, and failed to follow lawful instructions to return to work or leave premises – After investigation into incident, disciplinary procedure culminated in applicant’s dismissal – Other suspended employees returned to work - Authority found fair and reasonable employer would not have concluded that applicant deliberately and wilfully organised group in failing to start work and leave premises – Found other employees also involved in above allegations – Applicant treated differently from all other employees who were permitted to return to work – Respondent failed to explain why applicant singled out – Respondent failed to explain why concluded applicant deliberately and wilfully breached duty of fidelity and loyalty by talking to media, when applicant could explain parts of allegation – Found fair and reasonable employer would have had more evidence than that relied upon given gravity of allegations – Fair and reasonable employer might have concluded group was acting together given existence of group employment problems and fact that applicant was recognised elected room representative – Respondent failed to talk to applicant when applicant requested when group not starting work – Noted both parties did not engage in best practice to resolve problems – Applicant should have known employees were putting themselves at risk by not starting work – Applicant unjustifiably dismissed – Remedies – Applicant sought reinstatement - No evidence that reinstatement impracticable – Reinstatement awarded as primary remedy – Applicant contributed to situation because group relied on applicant as elected room representative and there were more appropriate alternative measures to address problems – Applicant refused to carry out lawful instructions – Contributory conduct to decrease compensation award – Meat worker
Result: Application granted ; Reinstatement ordered ; Compensation for humiliation etc ($1,500) ; Costs reserved
Schouten v New Zealand Ruby Rock Ltd
12 Sep 2007, H Doyle, CA 110/07, (9 pages)
UNJUSTIFIED DISMISSAL - Misconduct - Applicant dismissed for alleged dishonesty in money matters - Respondent claimed applicant increased her hourly rate without permission - Respondent confronted applicant and required her to leave immediately - Applicant had no control of account used to pay wages - No investigation and no opportunity to explain - Applicant kept careful records - Proper investigation would not have found applicant to be dishonest - Not open to fair and reasonable employer to conclude misconduct - Further allegation advanced by respondent that applicant played computer games and met family at work did not justify dismissal - Dismissal unjustified - Remedies - Applicant’s existing health condition aggravated as result of dismissal - Limited ability to look for full time work - Lost wages limited to three months - Employment initially subsidised by job start subsidy
Result: Application granted ; Reimbursement of lost wages ($6,760) ; Compensation for humiliation etc ($10,000) ; Holiday pay ($663.12) ; Disbursements in favour of applicant ($70)(Filing fee)
