Employment case notes (ET 102)

Nilson-Reid v Department of Conservation— Employment Court, Christchurch, March 2005

A former Department of Conservation employee’s claim that workplace stress caused her psychological damage and forced her resignation was dismissed by the Employment Court.

But Judge Travis did award a payment of $3000 compensation to the employee for distress caused by an unjustified disadvantage grievance over a conflict of interest issue.

The employee left her job in 2001 after working for the department for seven years. In the last year she developed a depressive illness which she said was due to the department’s failure in its duty to provide her with safe working conditions.

Judge Travis found that for the employee to have proved this claim she would have had to establish that the department had known, or ought to have known, of the risks to her and failed to act to avoid them.

Upholding an Employment Relations Authority determination, he concluded that the department had not breached their duty, that the risk of harm was not reasonably foreseeable, and that the employee’s resignation was not a constructive dismissal.

Further, he found personal issues had made a significant contribution to the woman’s development of the illness.

Jooste v Fetherston—Employment Relations Authority, Auckland, March 2005

The Authority clarified the nature of a man’s employment relationship with the respondents in order to proceed with an alleged unjustified dismissal and arrears of wages claim.

While the respondent claimed to have never employed the man at all, there was agreement that the man had been involved in some sort of working association with the respondent between August 2002 and May 2004.

The man claimed he was approached by a recruitment consultant on behalf of the respondent who was seeking a general manager for one of his companies. At the time he was in a secure, salaried employee position with no plans to leave for less secure employment.

After verbal discussions, the man embarked on a working relationship with the respondent. He also made a series of payments to the respondent to purchase shares in a number of the respondent’s companies. But he never received a written contract and a series of random payments made to him did not equate with the remuneration he was offered [in writing].

Eventually, the man brought up the non-payment of his salary with the respondent. Despite repeated assurances that he would be paid, he was not. At this point, the relationship broke down.

The Authority concluded the evidence clearly supported the man’s contention that he was engaged by the respondent in accordance with a contract of employment.

While this gave the Authority jurisdiction to investigate, the parties were directed to attend mediation to try and resolve the problem first.

Crawford v Recall NZ—Employment Relations Authority, Christchurch, March 2005

An application for interim reinstatement from an employee, who was dismissed for a positive drug test but claimed he was unjustifiably dismissed, was turned down by the Authority.

The employee undertook a pre-employment medical examination before he began work with Recall NZ (a division of Brambles NZ Ltd). His drug test result was positive. He attended a meeting about the result and agreed to take a second test and to take further tests weekly. It was agreed his employment would be terminated if any of the tests returned a positive result.

While the employee’s second test returned a negative result, his next test did not. The employee denied using drugs and said the result was incorrect. However, his employment was then terminated. Shortly afterwards, the employee passed a drug test he had carried out in a private capacity.

The Authority determined that, because the process and procedures involved in the dismissal were arguably not conducted in a fair and reasonable manner, the employee met the threshold of having a serious issue to be tried.

However, due to safety concerns, the Authority determined the balance of convenience weighed on the side of the company. For this reason the employee’s application for interim reinstatement was dismissed.

Costs were reserved until the final determination.

Snowdon v Radio New Zealand Ltd—Court of Appeal, Wellington, February 2005

The Court of Appeal turned down the application for leave to appeal a decision of the Employment Court and for an interim injunction from a woman involved in a long-running employment dispute with the respondent.

The employee had originally raised a personal grievance and was then absent from work for an extended period on annual and sick leave. Her attempts to return to work were resisted by the respondent.

Two particular problems caused delays. Firstly, the respondent wished to obtain detailed medical information about the employee’s health before her return. Secondly, the respondent wanted to meet the employee to discuss whether the employment relationship had completely broken down.

The employee was unwilling to attend such a meeting because she felt it might herald a dismissal. Three months after her attempts to return to work began, the respondent directed her to attend a meeting.

In response, she sought an Employment Court order restraining the respondent from requiring her to attend the proposed meeting, or to provide any responses connected directly or indirectly with proceedings before the court.
The Employment Court declined to exercise its discretion to make the order and expressed the view the proposed meeting was separate from the personal grievance proceedings. It saw no unfairness in the proposal.

The Court of Appeal found there would not be any relevant prejudice to the employee if it declined to hear the appeal. It also found that if the respondent did dismiss her, she would be able to test the dismissal in the courts.

Costs of $3000 were awarded in favour of the respondent.

Felman v Quality Transfer & Labels Ltd— Employment Court, Auckland, November 2004

A man dismissed from his job for angry and abusive behaviour, towards his fellow staff and clients, was unsuccessful in his challenge to an Employment Relations Authority determination which found he had been justifiably dismissed.

The defendant was a small company which had employed the man as a sales representative. Although the man had an existing client base, he was also expected to attract new clients.

The man did not agree he needed to do this. After he had been employed for a short time, the company began to receive complaints about him from clients and employees. Both the man’s manager and the company director tried to address the issues with him, but he refused to engage with them and became threatening.

Eventually, the man was dismissed for serious misconduct. He claimed to both the Authority and the Court that his dismissal was substantively and procedurally unjustified.

Judge Shaw considered a number of issues, including credibility and procedural fairness. She found the man was not unjustifiably dismissed from his employment and that his dismissal was carried out in a fair, transparent and reasonable manner.

The application was dismissed and costs were reserved until the parties reached an agreement on them.

—Selected and written
by Miriam Bell

Previous Employment Case Notes

Issue 148
Issue 147
Issue 146
Issue 145
Issue 144
Issue 143
Issue 142
Issue 141
Issue 140
Issue 139
Issue 138
Issue 137
Issue 136
Issue 135
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Issue 128
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Issue 120
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Issue 111
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Issue 109
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Issue 107
Issue 106
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Issue 102