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Barry v Anoop Investments Ltd and Ors
18 Jan 2007, M Urlich, AA 11/07, (5 pages)
PRACTICE AND PROCEDURE - No written employment agreement - Identity of employer - First respondent company and its directors named respondents - Applicant believed director personally employed him - Authority satisfied first respondent applicant's employer - ARREARS OF WAGES - Applicant claimed agreed to work no less than 40 hour weeks and sought arrears when rostered less than 40 - Not credible applicant would have waited to assert agreement - No agreement applicant to work minimum of 40 hours - Respondent presented new roster reducing applicant's hours - Authority not satisfied respondent conducted transparent consultation process - Applicant did not agree to permanent reduction - Implementation of roster breached terms of employment agreement - Respondent ordered to pay arrears for days applicant rostered off as result of reduction until resignation - Insufficient evidence parties agreed to loyalty bonus - Bonus claim dismissed - UNJUSTIFIED DISMISSAL - Constructive dismissal - Respondent told applicant could not afford to employ him and to look for other employment - Applicant raised arrears claim and personal grievance - Claimed employment relationship deteriorated and put under stress causing his resignation - Breach did not cause resignation as reduction issue ongoing over period of year - Other alleged breaches not sufficiently serious that risk of resignation reasonably foreseeable, and allegations not raised with respondent - No constructive dismissal - UNJUSTIFIED DISADVATANGE - Disadvantage claim out of time - PENALTY - Respondent failed to provide written employment agreement - Failure created uncertainty about terms of employment - However, intended to provide written employment agreements to staff but overlooked applicant - Oversight not wilful avoidance of s65 Employment Relations Act 2000 obligations - Penalty declined - Butchery manager
Result: Applications dismissed (Unjustified dismissal, unjustified disadvantage) ; Arrears of wages (Quantum to be determined) ; Costs reserved
Clear v Waikato District Health Board
13 Feb 2007, J Scott, AA 33/07, (51 pages)
UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Alleged disadvantaged by failure to properly investigate complaints or provide safe work environment - Also claimed unjustified dismissal - Applicant believed bullied by team leader ("TL") for 16 years - Described TL as "organisational psychopath" - After raising numerous complaints applicant told manager wanted TL's employment terminated - Respondent agreed to investigate 32 concerns ("fourth complaint") - Applicant requested further EAP counselling - Respondent considered psychiatric assessment more appropriate - Applicant exhausted sick leave and sought discretionary leave - Leave declined as 500 hours annual leave available and reason cited for leave (post-traumatic stress disorder) could only be professionally diagnosed - Respondent decided to take no further steps without psychiatrist's report - Concluded allegations against TL not justified and inappropriate to continue investigation - Conclusion never communicated to applicant - Respondent then focused on finding solution to allow applicant to return to work - Advised employment would end unless returned to original position - When applicant did not respond, employment terminated - No grievance in relation to first three complaints - Respondent had no knowledge of applicant's stress or health until took leave - Took all reasonable steps to ensure applicant's safety - However, investigation into fourth complaint became unfair - Respondent developed closed mind towards applicant - Scope and depth of inquiry too limited - Application for discretionary leave bungled - No contractual right to require psychiatric assessment - Breach of duty to halt investigation until applicant complied - Failure to adequately communicate with applicant compounded matters - Respondent also concluded TL bullied by applicant but did not advise her of finding - Investigation not full and fair - However, applicant's demand TL's employment be terminated contradicted concept of fair inquiry and predetermined outcome - Breach of duty to carry out full and fair investigation into fourth complaint - Unjustified disadvantage - Applicant suffered no additional harm as result of breach of duty - However, treatment frustrating and humiliating - Although relationship dysfunctional, applicant not bullied by TL - Claim based on failure to provide safe workplace declined - No positions available for which applicant qualified and willing to undertake - Dismissal justified - Remedies - Parties directed to mediation to discuss remedies - Nurse/Midwife
Result: Application granted in part (Disadvantage) ; Application dismissed (Dismissal) ; Parties directed to mediation ; Orders accordingly ; Costs reserved
Fraser v The Vice Chancellor of the University of Otago
22 Aug 2007, H Doyle, CA 22A/07, (26 pages)
UNJUSTIFIED DISMISSAL - Applicant claimed constructively dismissed due to mismanagement by HOD of difficult relationship with co-worker ("S") - Applicant resigned giving four months notice, citing stress problems - Applicant's lengthy notice period, and actions during it inconsistent with claim for constructive dismissal, and affirmed her contract of employment with respondent in knowledge of any breach - Authority found, if incorrect, any breaches not sufficiently serious to make resignation reasonably foreseeable - No constructive dismissal - UNJUSTIFIED DISADVANTAGE - Head of department breached obligations of trust, confidence and good faith by not following up with applicant after she raised concerns about S at performance review - Respondent's actions in not investigating whether applicant well enough to work notice period, and failing to investigate whether workplace safe to work out notice, unjustified - Actions not fair and reasonable in circumstances - Unjustified disadvantage - Remedies - Entitled to compensation for first breach - Applicant's stress increased during notice period - Applicant contributed to second breach, because did not advise unwell, or take all practical steps to ensure own safety at work - Also did not appear to have followed medical advice to take break before working again - Proper communication would probably have resulted in applicant taking leave for part of notice period - Real likelihood recuperation period could have been reduced - Constituted contributory conduct - Contribution taken into account in lost wages, and compensation award for second breach
Result: Application dismissed (Unjustified dismissal) ; Application granted (Unjustified disadvantage) ; Reimbursement of lost wages (13 weeks reduced to 6½ weeks) ; Compensation for humiliation etc ($3,000)(First breach) ; ($6,000)(Second breach)
Gilmour & Ors v ANZ National Bank Ltd
13 Mar 2007, GJ Wood, WA 39/07, (9 pages)
UNJUSTIFIED DISADVANTAGE - Applicants alleged breach of duty when respondent refused to increase salaries - Respondent met requirement to conduct annual market review of remuneration, albeit applicants disappointed that, in respondent's view, review showed them to be over-remunerated - No obligation to increase pay - No evidence respondent acted adverse to duty of good faith - Internal relativities important when setting remuneration and inconsistencies needed to be addressed at some point - No evidence applicant not paid in accordance with market rates - Respondent did not attempt to reduce remuneration and no legitimate expectation of future increases - Respondent conceded putting cap on applicants' remuneration disadvantaged them, however Authority accepted substantively justified - Authority did not accept applicants' allegation positions down graded - Did not suffer loss of status either - Remained on same grade - Respondent's actions justified except in relation to consultation - Consulted union generally but not in detail - No consultation with applicants until after it determined what it wanted to do about review - No obligation on respondent to negotiate or reach agreement with applicants over way would be remunerated in future - However duty of good faith applied as proposal impacted on employees - Issue could not be described as urgent - Fair and reasonable employer would have consulted applicants before deciding to implement new approach to remuneration - Simply informing union intended to conduct review insufficient - Broad outcome for applicants most likely not any different with consultation - Bank foresaw effect yet chose not to minimise it with consultation and support - Sense of shock could have considerably assuaged by consultation - Breach of good faith - Compensation appropriate - Personal managers
Result: Application granted ; Compensation for humiliation etc ($3,000)(each applicant) ; Costs reserved
Greenwood v Vodaphone New Zealand Ltd
30 Jan 2007, Y S Oldfield, AA 22/07, (13 pages)
UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Constructive dismissal - Incompatibility - Applicant claimed respondent failed to provide safe working environment - Authority not satisfied applicant bullied - Applicant argued even if not bullied, relationship dysfunctional and source of stress and confusion - Also claimed no management support - Required to solve difficult problems as inherent part of job - Operational matters did not pose foreseeable risk to applicant - Progress made in addressing personal conflicts - Confusion about role not addressed - Applicant claimed informal 2IC and "dotted line" reporting relationship with co-worker - Underlying cause of conflict with co-worker - Respondent denied applicant had that responsibility and no evidence gave this impression - However, applicant unjustifiably disadvantaged as manager failed to see applicant under misapprehension when should have been plain - Issues combined to cause significant stress and factor in ill heath - Authority not satisfied work only, or even primary cause - Assertion personal problems did not contribute to health issues not credible - Manager's knowledge of personal problems through friendship with applicant did not put respondent on notice applicant particularly at risk - Applicant went on stress leave then short term secondment - Managed return to original role proposed but applicant resigned before further meeting to discuss return - Respondent took reasonable steps to prevent further harm - Not reasonable for applicant to refuse to participate - No breach of duty - No constructive dismissal - Also disadvantaged by loss of remuneration as some leave taken without pay - Remedies - Contributory conduct - Applicant's actions contributed to workplace conflict - Personal problems contributed to distress - Team manager
Result: Application dismissed (Dismissal) ; Application granted (Disadvantage) ; Compensation for humiliation etc ($6,000) ; Costs reserved
Hamilton v B&D Doors Ltd, previously known as Dominator International Ltd and Ors
24 Jan 2007, J Crichton, CA 5/07, (9 pages)
UNJUSTIFIED DISADVANTAGE - Applicant alleged performance targets set without consultation - No evidence of this and nothing wrong with targets being formulated - Also alleged demoted from managerial position - Respondent concerned about production - Decided another employee would take over management role temporarily - Respondent's claim applicant accepted plan not accepted - No written agreement - No legal basis for demotion - Unilateral change to terms and conditions - Irrelevant continued to receive full salary - No performance review or opportunity to improve - Applicant suspended after respondent received reports he changed machine settings - No general legal right to suspend - Demotion and suspension unjustified actions - UNJUSTIFIED DISMISSAL - Misconduct - Applicant denied changing machines - Respondent concluded applicant responsible and actions serious misconduct - Applicant summarily dismissed - Respondent's investigation and evidence not robust enough to ground dismissal - Authority not persuaded settings changed with sinister intent - Dismissal unjustified - PENALTY - Applicant sought penalty for failure to provide written employment agreement and demotion - Matters dealt with under personal grievance, no need for penalty - No lockout as alleged by applicant as respondent lacked required motive - No evidence second and third respondents incited, instigated, aided or abetted breach of applicant's employment agreement - Manager
Result: Application granted (Disadvantage, Dismissal) ; Reimbursement of lost wages ($11,250)(3 months) ; Compensation for humiliation etc ($1,000)(Demotion disadvantage) ; ($1,000)(Suspension disadvantage) ; ($5,000)(Dismissal) ; Application dismissed (Penalty) ; Costs reserved
Hardy v Scoopy's ice Cream Parlour (Whangarei) Ltd
15 Feb 2007, R A Monaghan, AA 36/07, (7 pages)
UNJUSTIFIED DISADVANTAGE - Applicant alleged hours unilaterally reduced and unjustifiably suspended and warned - No appearance by respondent - Applicant asked for Saturdays off - Removed from weekends altogether and start time changed - Removal of Sunday work unjustified - Applicant complained about reduction and got union involved - Later received letter from respondent containing number of performance and misconduct allegations - Advised letter was written warning and suspended without pay until matter resolved - Warning issued before concerns put to applicant - Nature of concerns did not justify suspension in absence of employment term permitting it - Warning and suspension unjustified - UNJUSTIFIED DISMISSAL - Constructive dismissal - Claimed unjustified disadvantages constituted repuditory conduct - After unsuccessfully trying to arrange meeting with union, respondent attempted to contact applicant directly - Told applicant to report to work for disciplinary meeting - Issued second warning when she did not attend - Final warning issued for taking information without authority and applicant told to return uniform - Not appropriate to say suspension indefinite - Matters complicated by discussions about exit package and failure of respondent and union to arrange early meeting - Respondent should not have attempted to bypass union - Breaches by respondent numerous and significant - Failed to treat applicant fairly and reasonably - Failure to return to work foreseeable - Constructive dismissal - Remedies - Contributory conduct - Defying new roster ill-advised and applicant admitted unauthorised breaks - Not satisfied start time a condition of employment - Further claim for holiday pay raised inappropriately - Any underpayment likely to be minimal and matter not taken further
Result: Application granted ; Reimbursement of lost wages ($126)(Reduction in hours) ; ($630)(Suspension) ; ($2,730)(13 weeks)(Dismissal) ; Holiday pay ($209.16) ; Compensation for humiliation etc ($5,000) ; Costs reserved
Harvey v Milton Grange Pharmacy Ltd
20 Feb 2007, J Crichton, CA 18/07, (7 pages)
UNJUSTIFIED DISADVANTAGE - Whether respondent's owner told applicant business sold during job interview - Applicant claimed had no idea business sold and employment relationship would soon end - Applicant claimed found out situation when overheard owner talking about upcoming retirement - Owner told applicant buyer would take her on - Based this on fact buyer willing to employ applicant's predecessor - However, predecessor had pharmacy qualification and of different utility - Applicant subsequently spoke to buyer, who indicated did not wish to employ her - On balance of probabilities owner did not take sufficient steps to ensure applicant understood business sold - Failed to clearly establish terms of engagement - Owner should have ascertained whether applicant's employment would continue with buyer - Unjustified disadvantage - As soon as became clear applicant's employment not going to continue severance negotiations should have begun - No evidence of breach of good faith, owner genuinely believed applicant engaged for continuing employment - PENALTY - Failure to provide written employment agreement significant - Would have forced parties to recognise nature and extent of employment relationship - Penalty appropriate - Pharmacy assistant
Result: Application granted ; Compensation for humiliation etc ($7,000) ; Penalty ($750)(payable to applicant) ; Costs reserved
Holding v Design and Arts College of New Zealand Ltd
20 Dec 2006, J Crichton, CA 179/06, (7 pages)
UNJUSTIFIED DISMISSAL - UNJUSTIFIED DISADVANTAGE - Constructive dismissal - Applicant claimed respondent attempted to alter terms of employment - Respondent submitted changes agreed to and benefited applicant - Applicant paid significantly less than others in same position - Respondent claimed reflected unique employment terms - Applicant alleged respondent did not address concerns and considered relationship deteriorated further after supported colleague with personal grievance - Authority did not accept managing director ("MD") lied to applicant about intention to purchase respondent - MD asked applicant if intended to resign - Words ill-judged but not coercion when placed in context - Applicant had resigned twice before when dissatisfied with employment - MD felt had to accept third resignation as applicant not committed to new business vision - Decision not to seek to change applicant's mind understandable - Changing workplace and occasional unpleasantness between parties did not create unsafe environment - Allegation respondent failed to preserve employment relationship completely without merit - No evidence to support contention of direct discrimination against union members - Respondent raised 90 day issue - Authority did not accept that every breach which might ground constructive dismissal allegation must be subject of separately raised personal grievance - Only one breach or unjustified action by respondent - Failure to consult when business sold - No evidence applicant disadvantaged - Resignation not coerced - Although applicant regularly mentioned being under pressure, no evidence told employer unwell because of it - Not unreasonable stress - Work not intrinsically unsafe - No requirement employer rebut presumption of dismissal in constructive dismissal case - No constructive dismissal - Length of service 7½ years - Faculty director
Result: Application dismissed ; Costs reserved
Kim v Millenium Ltd
19 Feb 2007, V Campbell, AA 42/07, (8 pages)
UNJUSTIFIED DISADVANTAGE - Applicant claimed respondent unilaterally changed his terms and conditions when told would just be baking goods on reduced hourly rate - Second employment agreement signed on those terms - First employment agreement stated applicant employed on higher salary as manager - Authority satisfied likely applicant's immigration consultant signed respondent's director's name on agreement, and used it to assist applicant in applying for work permit - First agreement never sighted or signed by respondent, and did not reflect parties actual dealings - Agreement a sham - Given finding, first agreement not unilaterally departed from - No unjustified disadvantage - UNJUSTIFIED DISMISSAL - Redundancy - Respondent sold one of its stores - Applicant notified of dismissal on bread order - Respondent had concerns about applicant's ability to bake but no warnings given - More likely than not, principal reason for redundancy director's belief applicant misrepresented his qualifications when employed - However, question of genuineness of qualifications not put to applicant for explanation - Decision profoundly unfair - Not given formal notice redundancy possible or consulted - Manner notice given and lack of consultation not fair and reasonable - Given inherent unfairness in determination and implementation of redundancy, redundancy not genuine - Dismissal unjustified - Remedies - Applicant failed to mitigate losses - However, given director took steps to have applicant's work permit revoked, lost wages to be awarded at rate in second agreement - Applicant's hours unclear - Unable to determine lost wages - Parties directed to mediation to resolve issue - Baker
Result: Application dismissed (Unjustified disadvantage) ; Application granted (Unjustified dismissal) ; Reimbursement of lost wages (Three months)(Quantum to be determined) ; Leave reserved for quantum of lost wages to be determined ; Compensation for humiliation etc ($3,000) ; Orders accordingly ; Costs reserved
Kingsford v Bodyworks Panel & Paint Ltd
14 Feb 2007, G J Wood, WA 26/07, (13 pages)
UNJUSTIFIED DISADVANTAGE - Applicant young, had dyslexia and Asperger's, prone to misunderstanding boundaries - Wages subsidised by Workbridge - Workplace culture "blokey" with constant use of swearing - Applicant not subject to ongoing physical and verbal abuse - Respondent took action when applicant assaulted by co-worker - Even though co-worker only warned did not mean applicant unsafe - First warning for behaviour and performance justified - Applicant not to be criticised for leaving work a little early after assaulted - Second warning for absence unfair - Warnings not challenged within 90 days - Relevant to dismissal claim - UNJUSTIFIED DISMISSAL - Serious misconduct - Whether dismissed or resigned - Applicant walked out stating he quit following altercation with owner - Owner angry and advanced at applicant in response to his wholly inappropriate approaches and abusive language - Respondent told within minutes resignation not to be relied on - Clear from respondent's subsequent actions it knew applicant did not really intend to resign - Requirements of natural justice not met - Breach of employment agreement which required disciplinary meeting - Even though owner directly involved in incident not case where behaviour so clear serious misconduct could be safely concluded without investigation - Dismissal unjustified - Remedies - Applicant went on sickness benefit - Not enough to mitigate lost wages - No excuse for abusing owner and already warned about behaviour - Must have known crossed line abusing boss - Substantially responsible for termination - Contributory conduct 2/3rds - Paint and panel
Result: Application dismissed (Disadvantage) ; Application granted (Dismissal) ; Compensation for humiliation etc ($6,000 reduced to $2,000)
Mabbott v NZ Amalgamated Engineering Printing & Manufacturing Union
8 Feb 2007, D Asher, WA 22/07, (6 pages)
UNJUSTIFIED DISADVANTAGE - Alleged respondent breached employment agreement, particularly requirement to offer re-employment within 12 months of redundancy - Claimed respondent filled two vacancies after termination without clarifying her suitability - Respondent accepted owed ongoing contractual obligations to applicant - Applicant not employee in terms of s4(1A)(c) Employment Relations Act 2000 - Respondent not obliged to provide access to information - Vacancy to be offered if applicant had "appropriate skills and experience" - Respondent claimed considered applicant's suitability and concluded lacked appropriate skills - Did not think training could remedy situation - Decision based on working with applicant, and performance allegations put to applicant shortly before redundancy - Applicant did not accept allegations - Having fairly raised performance concerns, and in absence of ill will against applicant, respondent could justify decision not to offer vacancies as it had satisfied itself she lacked "appropriate skills" - Authority did not accept natural justice required interview opportunity to address concerns - While applicant disadvantaged, not unjustified - No personal grievance - Data processor
Result: Application dismissed ; Costs reserved
Mather v Pacific Island Business Development Trust
27 Feb 2007, R Monaghan, AA 50/07, (12 pages)
UNJUSTIFIED DISADVANATAGE - Applicant claimed disadvantaged in relation to performance review ("PR") and performance bonus ("PB") - Applicant achieved high ratings for performance in 2002 and 2003 period - Received full incentive payment - Parties agreed to base salary and "at risk" component - Delay in addressing PR did not mean performance agreement ("PA") or PR overlooked - Employment agreement varied to allow PR to be held annually rather than quarterly - Applicant resisted variation - PR for September quarter not carried out because proposal reviews be held annually still being developed - December quarter review did not go ahead because PA not finalised - Reviews to be subsumed in annual review carried out early in following year - Applicant claimed arrangement put to him without proper consultation - Applicant's input sought - Not deprived of right to be consulted - Applicant tendered resignation and accepted at risk component and PA criteria as worded - Applicant not entitled to full amount of bonus as did not work complete year and agreed to pro rating bonus - Applicant asked that assessment be reconsidered - However, did not indicate what matters should be taken into account - Argument emotional rather than reasoned - Board accepted recommendation of sub-committee that assessment not be changed - Applicant invited to make comments on how criteria had been met - Applicant failed to put case adequately to board - Failure to have independent body reconsider matter not unfair - Applicant's essential concern was relationship between pro-rating of bonus and having PR measured over shorter period than what was actually worked - Assessment regarding lease income not in accordance with parties' agreement, to that limited extent applicant, had personal grievance - Remedies - Limited basis for personal grievance meant compensation award not appropriate
Result: Application partially granted; Reimbursement of lost wages ($827.62)
Palin v Air New Zealand Ltd
8 Jan 2007, R A Monaghan, AA 1/07, (9 pages)
UNJUSTIFIED DISADVANTAGE - COMPLIANCE ORDER - Applicant alleged disadvantaged when respondent reneged on agreement resolving earlier personal grievance - Alternatively, sought compliance with agreement - Respondent claimed no agreement reached - Original grievance related to application of "lock on" provisions in collective employment agreement ("CEA") - Parties construed settlement discussions quite differently - Discussions could not be elevated to binding agreement - Also differences in parties' approach to potential for any resolution to set precedent or result in further grievances - Respondent sought assurance from pilots' association settlement with applicant would not lead to personal grievances from other pilots - Task probably unrealistic as association could not give promises on wider issue respondent had in mind - Respondent did not question applicant's genuinely-made representations concerns addressed - Left applicant with understanding resolution reached - Respondent should have acted promptly to address or correct impression applicant conveyed in subsequent letter - However, not appropriate to invoke this failure to impose agreement and would have potential to cut across operation of CEA to unacceptable extent - Parties' differences in approach and understanding too fundamental to allow for conclusion any meeting of the minds - No agreement to order compliance with - Personal grievance not made out - Authority did not address original personal grievance or dispute that crystallised after alleged settlement - Raised potentially complex issues and adjournment for preparation would have been necessary if Authority were to incorporate matters into present investigation - Authority commented original grievances not well-formulated in terms of s103 Employment Relations Act 2000 - Doubted original claim for bypass pay correctly described as grievance - Recommended mediation - Pilot
Result: Application dismissed ; Costs reserved
Proffitt v Chief Executive, Department of Labour
24 Aug 2007, Y Oldfield, AA 258/07, (20 pages)
UNJUSTIFIED DISADVANTAGE - Applicant claimed given substantively and procedurally unfair warning for misconduct - Applicant emailed draft "Accident Alert" to Energy Authority ("EECA") - Alert not cleared for release - Authority satisfied, overall, investigation process fair, and all relevant matters considered - Whether substantive justification for warning - No external complaint required for disciplinary process - Manager's concerns warranted further investigation - Applicant well aware of consultation process for alerts - Clearly, in general course of work, applicant authorised to advise on safe work practices - However, not unfettered discretion to say whatever saw fit to whomever saw fit - Proper question was whether particular email exceeded applicant's authority - Applicant knew not authorised, in terms of consultation process, to give "whole of Department" view - Nonetheless, presented personal view to EECA as though was respondent's- Authority concluded applicant exceeded authority in present case, and knew or should have known was doing so - Also, information in draft Alert not consistent with respondent's view and applicant knew or should have known that - Authority satisfied applicant fully aware of what was doing - Warning justified - No unjustified disadvantage - Parties disagreed about scope of Inspector role - Respondent asked for recommendations as to how parties could "move forward" in employment relationship - Authority considered relevant provisions of Health and Safety in Employment Act 1992 - Inspectors functions and powers subject to directions and conditions imposed by Chief Executive - As delegated, directions and conditions included Departmental policies and procedures - Only extreme cases justified departure from such constraints - Inspectors obliged to work within limits of authority as set by Departmental procedure - Actions points in letter of warning therefore reasonable - Health and Safety Inspector
Result: Application dismissed ; Costs reserved
Pulu v Guardian Healthcare Group Ltd
9 Feb 2007, R Arthur, AA 27/07, (9 pages)
UNJUSTIFIED DISADVANTAGE - Name of respondent amended due to amalgamation and take over - Applicant given final warning after patient suffered broken leg as result of breach of lifting policy - Warning based on conclusions reasonably open to respondent - Warned failure to comply with lifting policy or any other breaches or performance concerns would result in dismissal - No unjustified disadvantage - UNJUSTIFIED DISMISSAL - Misconduct - Dismissed for being late to work in breach of house rules - Applicant admitted late, of no consequence exact date not determined - Employment agreement stated employee on final warning may be dismissed if "the misconduct or non-performance occurred again" - Use of "the" required repeat of same kind of behaviour subject of warning - Warning not able to override employment agreement - Respondent not able to say because warned when could have dismissed, could now make severe decision on minor offence - Authority not persuaded by allegation warning and dismissal to punish applicant for giving information to police investigation into co worker - Dismissal unjustified - Remedies - Serious breach of lifting policy and final warning important part of context - Late without good reason - Contributory conduct 25 percent - Caregiver
Result: Application dismissed (Disadvantage) ; Application granted (Dismissal) ; Reimbursement of lost wages (14 weeks reduced to 12 weeks) ; Compensation for humiliation etc ($3,000 reduced to $2,250) ; Costs reserved
Rarere v Electrotech Controls Ltd
2 Feb 2007, GJ Wood, WA 19/07, (11 pages)
UNJUSTIFIED DISMISSAL - UNJUSTIFIED DISADVANTAGE - Constructive dismissal - Applicant claimed unjustifiably dismissed and/or disadvantaged after declined to continue as casual employee when completed apprenticeship - Applicant originally employed under several fixed term agreements - No legitimate expectation of ongoing employment once apprenticeship concluded - Employment agreement provided employment automatically terminated after 8,000 hours or qualification completed - Applicant completed 8,000 hours but employment continued without comment - When applicant completed qualification respondent gave notice and offered her casual position until passed registration exam - Applicant went on sick leave and never returned - Once hours completed employment became permanent - Entitled to ongoing employment - Reasonable for applicant to decline casual employment - Constructive dismissal - Could also be unjustified disadvantage as security of employment wrongly diminished - BREACH OF CONTRACT - Respondent not responsible for CD applicant loaned to co-worker - Applicant not entitled to travel allowance - Employment agreement provided subsidised medical insurance after three months employment - Applicant not given benefit for two years - Sought damages to cover medical claims - Loss direct result of respondent's failure - Claim offset against contributions applicant required to make - Penalty not appropriate - Electrical apprentice
Result: Application granted ; Reimbursement of lost wages ($8,482.15)(13 weeks) ; Compensation for humiliation etc ($7,000) ; Damages ($939.92) ; Costs reserved
Ryan & Anor v Waipa Youth & Anor
7 May 2007, J Scott, AA 140/07, (17 pages)
UNJUSTIFIED DISADVANTAGE - Serious misconduct - Following an investigation, first and second applicants ("R") and ("P") suspended and dismissed for alleged disobedience, dishonesty, and using work time and materials for personal use - No provision to suspend in employment agreements - Respondent failed to establish situation existed to justify immediate suspensions - No opportunity to comment or inquiries made of applicants' prior to suspensions - P's suspension completely unfounded - Fair and reasonable employer would have consulted applicants before suspending - Wholly deficient process - Unjustified disadvantage - UNJUSTIFIED DISMISSAL - Except for two grounds of dismissal, misconduct not established - Applicants spent unreasonable amount of work time on personal and family activities - Evidence suggested R challenging and poor manager - R created files in names of real individuals without their knowledge or consent - Constituted misconduct going to heart of professional and ethical obligations as counsellor, and those to respondent - Respondent erred by not putting specific allegations about conduct to applicants - Entire dismissal process dogged by bias and predetermination - Actions not those of fair and reasonable employer - Dismissals unjustified - Remedies - Had investigation been fair, respondent would have concluded R guilty of serious misconduct justifying dismissal - No lost remuneration due to contributory conduct - Appalling process treated P as part of "job lot" with R - P's contributory conduct 25 percent - ARREARS OF WAGES AND HOLIDAY PAY - P's wages and holiday pay due and owing - COSTS - 3½ day investigation meeting - Respondent's failure to follow directions of Authority reflected in costs awards - Failures added to time and difficulties of investigation - Respondent refused to attend mediation - Matter should have been disposed of in two days - Respondent to pay $10,000 contribution to costs - Manager/Counsellor and Administrator
Result: Application granted (First applicant) ; Compensation for humiliation etc ($2,500)(Unjustified disadvantage) ; ($10,000)(Unjustified dismissal) ; Application granted (Second applicant) ; Reimbursement of lost wages (Quantum to be determined reduced by 25%)(3 months) ; Arrears of wages and holiday pay (Quantum to be determined) ; Compensation for humiliation etc ($3,500)(Unjustified disadvantage) ; ($12,500 reduced to $9375)(Unjustified dismissal) ; Costs in favour of applicants ($10,000)
Selwood v Queen Margaret College Incorporated
23 Aug 2007, RA Monaghan, WA 42A/07, (38 pages)
UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - BREACH OF CONTRACT - Applicant claimed respondent removed IT management responsibilities, and threatened redundancy if did not accept new job description - Respondent introduced structured IT management system - Sought to have applicant take near full time teaching load - Applicant resigned - Authority found IT management responsibilities informal part of role only - Essence of job remained same - Did not amount to significant change to applicant's terms and conditions - Obligation to consult in employment agreement not triggered - No disadvantage in respect of teaching load, or requirement to move offices - No failure to acknowledge applicant's specialist skills - Respondent entitled to introduce management system - Applicant not entitled press for lightening of teaching load or keep responsibilities - Respondent not obliged to accede to his wishes - Letter from principal ("C"), mentioning redundancy, indicated termination of applicant's employment imminent if did not sign job description - Constituted breach of obligation to give notice and caused disadvantage - Unjustified disadvantage - Applicant claimed constructive dismissal - Principal ("C") went to considerable effort to discuss applicant's concerns and attempt to resolve them - Claimed disadvantaged by way incidents involving deputy principal and student handled - Neither incident constituted breach of duty or handled unfairly or unsatisfactorily - Also claimed denied support person at non-disciplinary meetings - Requirement for support person less fundamental when meetings non-disciplinary - No course of conduct with deliberate and dominant purpose of coercing resignation - Cumulative effect of respondent's conduct did not amount to breach of duty founding constructive dismissal - No constructive dismissal - Applicant's allegations respondent took retribution against witnesses dismissed - Remedies - Applicant claimed illness caused by stress as result of respondent's conduct, or stress masked symptoms of illness until became terminal - Evidence supporting claim sparse, and could be no more than speculative - ICT teacher and administrator
Result: Application dismissed (Unjustified dismissal) ; Application granted (Unjustified disadvantage) ; Compensation for humiliation etc ($5,000)(Disadvantage) ; Costs reserved
Shakes & ANor v Norske Skog Tasman Ltd
12 Sep 2007, J Scott, AA 283/07, (11 pages
UNJUSTIFIED DISADVANTAGE - Applicants union delegates at respondent - Respondent approved paid union leave under collective employment agreement ("CEA") for applicants to attend investigation meeting of employee from different union - Subsequently asked to submit annual leave request - Applicants elected to take annual leave and alternative holiday - Claimed disadvantaged because required to take leave other than paid union leave - Sought to have leave days reinstated and compensation - Under CEA delegates entitled to take paid union leave to attend to their union's "business" - Investigation meeting involved business of different union - Not entitled to paid union leave under CEA - Rejected submission, in absence of explicit CEA provision allowing reasonable paid leave to take part in dispute resolution processes, was implied obligation to allow applicants reasonable paid leave to attend investigation meeting - Respondent adopted reasonable approach by discussing situation and advising appropriate to take leave from applicants' accumulated leave - Actions fair and reasonable - Also sought declaration respondent breached Holidays Act 2003 and s4 Employment Relations Act 2000 good faith obligations - Under s76 Holidays Act only Labour Inspectors could bring action to recover penalty - No jurisdiction to address applicants' claim for breach of Holidays Act or direct reinstatement of leave days - No breach of s4 ERA good faith obligations - No unjustified disadvantage - Control system technicians
Result: Application dismissed ; Costs reserved
Shell v Ohibro Ltd (formerly called Gandalf Group Ltd)
30 Aug 2007, D Asher, WA 123/07, (7 pages)
DISCRIMINATION - UNJUSTIFIED DISADVANTAGE - No appearance for respondent - Applicant's unchallenged evidence accepted - Applicant alleged discriminated against on grounds of family status - One month after returned from parental leave, forced to accept different and less satisfactory part-time position - Without prior warning, applicant called into meeting and handed redundancy letter - Authority satisfied director's attitude changed markedly for worse when returned from parental leave - Because of family status, position unilaterally changed and employment terminated on grounds of claimed redundancy - Respondent's actions not fair and reasonable in circumstances - Discrimination established - Unjustified disadvantage - UNJUSTIFIED DISMISSAL - Following dismissal, applicant saw vacancy at respondent advertised - No consultation or exploration of alternatives to redundancy, including advertised vacancy - No evidence redundancy genuine - Termination procedure grossly unfair - Respondent also breached good faith, particularly s4(1A) Employment Relations Act 2000 obligations - Dismissal unjustified - Remedies - Discrimination and callous actions caused significant distress - Actions took no account of applicant's vulnerability, or financial contribution to her family - Global award of compensation for humiliation etc appropriate - COSTS - Applicant awarded $1,974.25 in costs and disbursements - Receptionist
Result: Applications granted ; Reimbursement of lost wages ($1,250 nett) ; Compensation for humiliation etc ($15,000) ; Costs in favour of applicant ($1,974.25)
Singh v Frucor Beverages Ltd
6 Mar 2007, K Raureti, AA 60/07, (10 pages)
RACIAL HARASSMENT - Applicant submitted no problems at work until new manager started - Raised four matters: isolated swearing incident, timing applicant while worked, distribution of Easter eggs and request for new overalls - Authority not satisfied swearing incident occurred - Even if did occur, not within s109 Employment Relations Act 2000 description of racial harassment - Other incidents did not separately or cumulatively amount to racial discrimination - UNJUSTIFIED DISADVANTAGE - First disciplinary meeting called to discuss high level of absenteeism - Respondent supportive of applicant's circumstances and formulated action plan to work with him - Following week applicant took two sick days - Second disciplinary meeting held and applicant issued with first written warning - Issuing warning so soon after committed to working together premature and unjustified - Disadvantaged as warning had significant impact of subsequent disciplinary meetings - Unjustified disadvantage - UNJUSTIFIED DISMISSAL - Misconduct - Dismissed for driving truck in manner that damaged property and for stacking pallets in potentially dangerous manner - Respondent considered these wilful or negligent acts that affected safety and quality - Prior to dismissal received final warning for hitting co-worker with truck - Affect of incorrect stacking overstated - Did not create serious hazard to all employees working in area - Matter escalated to one where dismissal possible because on final warning - Unlikely matters serious enough to warrant disciplinary meeting for serious misconduct in isolation - Unjustified first warning escalated every action after it - Dismissal unjustified - Remedies - Applicant sought reinstatement - Respondent large employer and on notice reinstatement sought - Reinstatement not impracticable, even though another employee appointed to position - Reinstatement ordered to former position, or one no less advantageous - Parties encouraged to attend mediation to assist return - Contributory conduct 30 percent - Storeman
Result: Application dismissed (Racial harassment) ; Application granted (Disadvantage and dismissal) ; Reimbursement of lost wages (4 months less earnings, reduced by 30%) ; Compensation for humiliation etc ($1,000 reduced to $700) ; Disbursements in favour of applicant ($70)(Filing fee)
Taylor & Ors v Office Max New Zealand Ltd
9 Aug 2007, J Crichton, CA 97/07, (16 pages)
UNJUSTIFIED DISADVANTAGE - Eleven applicants employed in various sales roles - Respondent attempted to introduce new commission structure - Would result in loss of income to applicants - Process of consultation purportedly undertaken over next year - Authority found no genuine prospect of applicants influencing respondent - Respondent agreed to keep applicants on original commission structure after grievance process begun - Applicants disadvantaged by implementation of new scheme after a long period in which were left in state of perpetual anxiety about possible reduction in income - Respondent's unilateral imposition of scheme constituted unjustified action - Respondent argued as cancelled new scheme applicants not subject to negative consequences - Respondent did not act promptly, scheme cancelled about three months after grievances raised - Authority looked at respondent's behaviour over whole period (nearly two years) - Consultation process created level of unbearable uncertainty during that time - Flawed process breached good faith obligations - "Patch up" principle from Rankin v Attorney-General (cited below) did not apply as patch not large enough to deal with injury - Remedies - Respondent ordered to retain applicants on old scheme until new scheme agreed to - Respondent had breached good faith obligations but penalty not considered as payment of compensation appropriate - Sales
Result: Application granted ; Reimbursement of lost wages (Quantum to be determined) ; Compensation for humiliation etc ($6,000)(each applicant) ; Orders accordingly ; Costs reserved
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