Employment case notes (ET 104)
Association of University Staff v the Vice-Chancellor of the University of Auckland— Employment Court, Auckland, May 2005
An industrial relations problem between the university and the union was dissected in an Employment Court decision which largely upheld the union’s argument that the bargaining process had been undermined. However, the court did not make a finding of bad faith dealing by the university.
The central issue considered by the court was whether the university is entitled to resist negotiating for a multi-employer collective agreement. The university said it had a genuine reason to not only not enter bargaining with other employer parties, but to not conclude a multi-employer collective agreement.
The court found the relevant legislation requires the university to participate in the bargaining process initiated by the union— although, ultimately, it may not require it to enter into a multi-employer collective agreement if it meets the statutory tests for refusing to do so. A refusal to bargain could constitute a breach of the duty of good faith.
Two other separate but allied issues were also considered by the court. One related to the possibility some university communications had breached the ERA. The other related to whether the university’s offer of increased remuneration to non-union staff breached the ERA by undermining the union’s authority and bargaining.
On the communications issue, the court found the university had undermined the bargaining process by an underlying refusal to participate. On the issue of the non-union offer, the court found it could have had the effect of undermining the bargaining. But it said the university’s belief it was entitled to communicate directly with non-union employees was a relevant consideration.
The court directed the parties involved to enter into a bargaining process arrangement governed by the appropriate legislative protocols. It did not consider it appropriate to award costs.
Kumar v Icehouse (NZ) Ltd—Employment Relations Authority, Auckland, April 2005
An employee’s claim of unjustified dismissal was rejected by the authority, which also determined it was unable to help him resolve his related employment relationship problem.
The company summarily dismissed the employee in June 2004, after an allegation of sexual harassment was made against him. After the allegation was made, a series of meetings were held between management and the employee and his various representatives.
While the employee denied being in the area the incident was alleged to have taken place in, the company had evidence he was. Based on the evidence of the person who made the allegation and the employee’s untrue statement, the company decided to dismiss the employee.
The authority determined the company had conducted a full and fair enquiry into the incident, and it was open to it to conclude serious misconduct had occurred. The authority also determined the employee was not unjustifiably dismissed and instructed the parties to attempt to resolve any cost issues.
NZ Public Service Assoc v Waitemata DHB— Employment Court, Auckland, May 2005
The Employment Court upheld a challenge to an Employment Relations Authority determination that staff at the Mason Clinic were not entitled to a civilian clothing allowance.
Staff had been engaged in a long-running dispute with the WDHB over whether or not they were able to choose between wearing a uniform and civilian clothing while at work. The union alleged staff were not provided with adequate uniforms and, as a result, had to wear civilian clothing. Staff members wanted to receive a backdated clothing allowance.
The WDHB maintained staff were not entitled to an allowance because they were not directed to wear civilian clothing.
Judge Shaw found the staff who wore civilian clothing had no real alternative and, therefore, did not choose to do so. She said it would be unjust to allow the WDHB to give its staff virtually no choice but to wear civilian clothing, while avoiding any financial responsibility by deliberately not directing them to wear that clothing.
She also found the only way for the WDHB to avoid liability for paying a civilian clothing allowance was if it had provided normal uniforms and a reliable method for staff to obtain them.
But Judge Shaw said it was not possible for the Court to give adequate directions on resolving the matter for each staff member. She instead left it to the parties involved to behave responsibly in determining how to quantify payments to staff.
If the parties were unable to reach agreement, the union was ordered to file a costs memorandum within 28 days.
Askew v Tegel Foods Ltd —Employment Relations Authority, Wellington, April 2005
The Employment Relations Authority determined that the warning and subsequent dismissal of an employee for threatening behaviour were justified in substance and procedure.
The employee, who had difficulty digesting a lot of material at one time due to a brain injury, had worked for the company for 15 years. Over the course of 2004 management had talked to the employee about his timekeeping, and his attitude to other staff, in particular one of the woman who had authority over him.
In July 2004 the employee was late to work. The woman he had an issue with raised this with him, and he swore at her and later made a threatening statement about her to a colleague. This behaviour resulted in a disciplinary investigation meeting and then the issue of a final warning. A month later a similar set of incidents took place and, after another meeting, the company decided to dismiss the employee for serious misconduct.
The authority determined the company’s inquiry into the first incident was fair. It further determined the issuing of a final warning was a conclusion a fair and reasonable employer could reach in the circumstances. Because the matter involved serious misconduct there was no requirement for previous warnings.
The authority also determined the dismissal process adopted by the company was largely fair, although not perfect. Employers have duties to ensure the health and safety of all their employees, and it was reasonable for the company to conclude the employee was an ongoing threat to it meeting those duties.
For these reasons, the employee’s warning and dismissal were considered to be justified. Costs were reserved.
Ho v the Chief of Defence Force— Employment Court, Wellington, April 2005
The Employment Court made a series of judgments on a multi-dimensional employment relationship problem between the Chief of the Defence Force and an employee.
The employee complained that her employer, when dealing with a current industrial matter relating to her, breached promises of finality and confidentiality relating to an earlier mediated issue. She also complained she had never received training contemplated for her. She alleged her employment had been affected to her disadvantage because of these issues.
Regarding the employee’s first complaint, Judge Goddard found several of the allegations of breaches could not be made out. But he found the insensitive handling of the confidentiality of the mediation settlement entitled the employee to remedies of $5000.
Judge Goddard found the allegation of non-provision of training did not amount to a breach of any proved term of settlement.
Allegations of witness intimidation, on the part of the Chief of the Defence Force, which emerged during the case, were also considered by the court. Judge Goddard found these amounted to an ill-advised attempt to close off avenues of justice. Their impact on the employee resulted in the judge awarding her $20,000.
—Selected and written
by Miriam Bell
Previous Employment Case Notes
Issue 148
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