Employment case notes (ET 105)

Lewis v Talleys Fisheries Ltd—Human Rights Review Tribunal, July 2005

Several different roles were required to carry out the work at the company’s factory. These predominantly revolved around filleting or trimming fish, but different levels of skill were required for each role.

The employee claimed filleting jobs, which paid more, were allocated to men while trimming jobs were allocated to women. It was her view that women were not offered the chance to move into filleting jobs, or encouraged to apply for them. She also claimed that different pay levels for jobs requiring the same skill levels were discriminatory in themselves.

Although the company denied that it based pay levels on, or allocated jobs by, gender, it did concede more men than women were employed in filleting roles.

The tribunal found evidence of an attitude in the company’s management that women were unlikely to be as adept as men at the filleting role and that women would not choose to do the role. It did not see any evidence the company had a practice of offering the role to women, although it did not find this discrimination was intentional.

However, the tribunal did not uphold the employee’s complaint about gender discrimination in remuneration rates. It also found the complaint had raised awareness of the issue at the company and, as a result, more women now seemed to be employed in filleting roles.

Blake v Canpac International Ltd—ERA, Auckland, June 2005

An employee’s claims of unjustified constructive dismissal, unjustified disadvantage, and breaches of health and safety legislation were dismissed by the Employment Relations Authority.

The employee was originally employed temporarily to work on a day shift. After changing to the night shift, he began to suffer health problems and was diagnosed with a heart disorder. To accommodate this, the company moved him back to the day shift temporarily. Inconsistencies with the collective employment agreement resulted in the employee then being moved to the afternoon shift, where his health problems continued.

Eventually, a number of meetings about the employee’s health were conducted. At this point, the company became concerned about the extent of the problem and its potential impact on the workplace. A number of options, including resignation, were discussed.

The employee resigned the next day, claiming he had been put under pressure to the point that he had no option but to resign. The company disputed this and said they had justified concerns about the employee’s health and safety, as well as that of other employees.

The authority determined the employee chose to resign of his own free will. His decision to do so meant his resignation did not constitute an unjustified constructive dismissal. It also determined there was no evidence of the company subjecting the employee to an unjustified disadvantage, or failing to provide a safe workplace.

Isherwood v Department of Labour—ERA, Auckland, June 2005

The Employment Relations Authority determined that an employee was not eligible to receive paid parental leave despite her claims of irregularity in the relevant legislation. The woman had worked as the manager of a takeaway bar for two years. During that time there were several changes of ownership; two in the seven month period prior to her resignation [which was due to ill health].

Although the employee had become pregnant some months before the business was sold for the last time she had not applied for parental leave then. She decided to apply for parental leave just prior to the actual change of ownership, and after she had declined a job offer from the new owner.

The IRD turned down her application and referred her request for a review of that decision to the Department of Labour. The department decided she was not eligible for parental leave as she had not been employed for the ‘immediately preceding 12 months’ before the expected date of delivery.

While the employee submitted her employment fulfilled the requirements of the Act and her application was prevented by an irregularity in those requirements, the authority determined the department’s interpretation was correct. It also determined the authority’s jurisdiction was limited to remedying procedural irregularities and did not extend to remedying ineligibility.

Waikanae Holdings (Gisborne) Ltd v George Smith—Employment Court, Auckland, June 2005

New evidence led the Employment Court to uphold a challenge to an Employment Relations Authority determination that a company’s former employee had not breached his employment contract and duty of fidelity.

The man left the company to set up his own business. On the day after his departure he started doing a job for one of the company’s major clients and has continued to supply his service to that client.

His former employer claimed the employee had arranged to take over service of the client before he left the company. As a result, the company had suffered a significant loss in business from the client.

This was said to be a breach of his employment agreement which required him to promote and enhance the interests of the company. It was also considered to show he had acted in competition with the company while still an employee, which breached his duty of loyalty, good faith and honesty.

The employee denied approaching the client, or any others, for business before leaving the company—although he said he had been approached after his resignation became known. He said he left the company because of an excessive workload which had resulted in health and family problems. He also claimed his initial approaches to his employer to continue work for them as sub-contractor were declined.

Judge Travis found the employee had failed to take steps to protect the company’s interests while still in their employment, and this was a breach of both the implied duty of fidelity and the express terms of his employment agreement. He awarded $6000 to the company as damages for lost earnings and ordered both parties negotiate an agreement on costs.

Rae Healey v Mercury Bay Area School Board of Trustees—Employment Court, Auckland, 2005

The Employment Court overturned an Employment Relations Authority determination that an MBAS employee had not been constructively dismissed, as she claimed.

The employee was the school’s counsellor for two years. Over the course of her employment, the employee’s relationship with the principal and the board of trustees [her employer] became increasingly fraught. Eventually, it broke down completely after a series of incidents and disciplinary actions.

The employee claimed her employer acted unreasonably and unfairly towards her, which led to her suffering undue concern and stress about her employment. She also claimed her employer breached the terms of her employment, as well as health and safety legislation. As a result, she said she had no choice but to resign.

However, MBAS denied the employee’s claim and said that her actions contributed to the situation which gave rise to her personal grievance. Judge Shaw found MBAS has breached its duty to comply with its obligations under the Education Act, the collective employment contract, and its school policies in the disciplinary procedures it took against the employee.

She said breaches were serious and of a sort a responsible and reasonable school employer should not have been party to. It was not surprising the employee was not able, or prepared, to work under such conditions, or that she lost all trust and confidence in her employer. For this reason, Judge Shaw agreed the employee had no alternative other than to resign and, therefore, had been constructively dismissed without justification. However, she also found that MBAS had not breached their requirement to provide a safe workplace.

The court awarded $20,000 to the employee for compensation for humiliation and distress.

—Selected and written
by Miriam Bell

Previous Employment Case Notes

Issue 160
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