Employment case notes (ET 106)

The ANZ National Bank Ltd v Doidge—Employment Court, Auckland, August 2005

An employee's challenge to an Employment Relations Authority determination that, while the ANZ breached its employment agreement with her it did not dismiss her constructively, was rejected by the Employment Court.

The employee worked at the bank on a casual basis during school holidays. A mileage allowance was paid for evening/night work and, as she travelled about 100 kilometres for each working period, this allowance was important to her. This arrangement continued over several periods of casual employment. But a few days before the employee was due to embark on another such period, the ANZ stopped paying mileage allowances to casual employees.

Working for the bank without the mileage allowance was not a practical option for the employee. As, in initial discussions, the allowance was going to be provided, she initiated a personal grievance claiming an express condition of her employment contract had been breached and, as a result, she had been unjustifiably dismissed. But the bank claimed the allowance was simply a unilateral benefit it was entitled to withdraw without employee agreement.

Judge Colgan found the mileage allowance was not a contractual term and, although it was a condition of her employment, the authority had wrongly determined there had been a breach of the employment agreement. While its withdrawal by ANZ disadvantaged the employee, it was not unjustified under the circumstances. No costs were awarded.

Graham v Airways Corporation of NZ Ltd—Employment Court, Auckland, July 2005

Challenges to the findings in an Employment Relations Authority determination, which related to a claim of unjustifiable dismissal, resulted in a decision in the corporation's favour.

The employee was a trainee with the corporation, which is New Zealand's monopoly provider of air traffic control services. After completing her initial training course, she was employed by the corporation but required to undertake further airfield-specific training.

There was turbulence in the employment relationship from early on and a number of issues with her proficiency were also raised. The situation culminated in an incident where her instructor told the employee she had reservations about her performance. This led to the employee handing over air traffic control to her instructor and leaving the control tower. A discussion with the chief controller, following this incident, resulted in the employee's suspension. While the employee claimed her suspension was unjustified and disadvantaged her in her employment, the corporation claimed it was not.

Judge Colgan found the suspension from training did disadvantage the employee, but that it was not an unjustified disadvantage in the circumstances. He also found the employee's claim of unjustified dismissal failed because, overall, the corporation had complied with its contractual obligations and made a fair and reasonable decision.

The employee's challenge to the authority's determination failed while the corporation's was upheld. The judge awarded costs of $9000 to the corporation.

Van Kampen v NZ Business Telephone Company Ltd-ERA, Auckland, July 2005

The Employment Relations Authority determined that, although there was a genuine commercial reason for his redundancy, an employee had been unjustifiably dismissed because of serious flaws in the process followed by his employer.

After working for the telecommunications hardware company for five months, the employee was made redundant. He claimed his redundancy came out of the blue and he was treated poorly. The company claimed there were commercial motivations for the redundancy, that the employee was consulted about it and treated fairly throughout the process.

The authority found the primary focus of the employee's role was the development of a dealer channel which did not progress as quickly as expected. When the Australian company's managing director visited he indicated the company was not prepared to make the necessary commitment to the dealer channel and would prefer a focus on direct selling.

Direct selling was not something the employee was interested in doing. The authority found it was the company's prerogative to refocus its business away from the dealer channel to direct selling. This meant there was a genuine commercial reason to disestablish the employee's position.

In a redundancy setting an employer is obliged to consult with the effected employee before any decision is made. The authority found that, while the employee was aware his position was in a perilous state, correct consultation procedures were not followed. For this reason, the employee's dismissal for redundancy was unjustified. The employee was awarded $3000 for hurt and humiliation caused by the dismissal.

Thompson v the Trustees of the Solway Trust-Employment Court - Auckland, July 2005

An employee's claim that she was dismissed by the Trust at a disciplinary meeting was rejected by the Employment Court, which upheld an Employment Relations Authority determination.

The employee had worked as a caregiver for the Trust, which runs residential homes for people with head injuries and intellectual disabilities. She became concerned over what she perceived as the mistreatment of a resident. As a result, she was asked to attend a meeting to discuss the treatment programme of the resident.

At the meeting, the treatment programme was explained to the employee and she was told that if she could not follow the plan she would not be able to work with the resident. The employee did not accept the programme and thought it should be changed. She then became agitated and abusive, and was told to go home for the day.
Following the meeting, a conflict between the employee and the Trust over whether she had been dismissed or not, developed. The employee claimed she had and demanded to be paid out. The Trust claimed she was told her employment could be affected if she did not follow the plans laid down for individual residents.

Judge Shaw found the employee mistakenly interpreted this as a dismissal, which was not what the Trust intended, and had left her position. She also dismissed the employee's claim that penalties awarded against the defendant, because of non-provision of an employment contract and a wage-time record, should be paid to her.

NZ Amalgamated EPMU v Christchurch Press—Employment Court, Christchurch, May 2005

The Employment Court upheld a challenge to an Employment Relations Authority determination on the interpretation and application of a collective agreement. Night shift printing staff at the company were used to working on The Press on a job and finish basis. The company initiated discussion of whether those staff could be required to work an eight-hour shift.

But the union contended the job and finish arrangement was an individual term of employment for those staff employed before the collective came into force in April 2003. It also contented that such individual terms of employment were not inconsistent with the terms of the collective, so the company can not require those employees to work an eight-hour shift, other than under the job and finish arrangement, without their agreement.

Judge Goddard found a work practice of 30 years' standing can not be dismissed as merely the operation of grace and favour, and that it seemed clear that long-serving night shift employees had been employed, de facto at least, to work only on putting out The Press on a job and finish basis.

He also found the authority's interpretation of the collective agreement was too narrow, too literal and failed to have regard for the nature and purpose of the night shift employment. The court expressed hope negotiations, which would provide a way for the company to be able to ask the employees in question to work a normal eigh- hour shift and to handle other publications, could now take place. Costs were reserved.

—Selected and written
by Miriam Bell

Previous Employment Case Notes

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