Employment case notes (ET 107)
Sprott v Centre for Advanced Medicine—ERA, Auckland, October 2005
A specialist doctor’s claim that his summary dismissal for serious misconduct was unjustified was upheld in an Employment Relations Authority determination.
His overseas-based employer had arrived at the centre one day and called the doctor, who was employed as the CEO, into a meeting. During that meeting the doctor was given a termination letter and told his employment at the centre was over. The doctor argued that he had received no warning his employment was in jeopardy and that he was dismissed without due regard to the accepted standards of procedural fairness.
But his employer argued the doctor was dismissed for non-performance of his duties and serious misconduct. The doctor’s misconduct was said to relate to a failure to respond to previous concerns expressed by the board, and by the response of the doctor’s father (who also served as a consultant to the centre) to an earlier suggestion of dismissal.
The Authority agreed senior employees are expected to perform to a high standard and to complete the duties assigned to them. But it found that any review of performance must be transparent and the employee had to be given a fair opportunity to respond to, and address, any concerns. It did not consider the doctor was given such an opportunity, so it was not reasonable for his employer to conclude he had failed to perform his duties.
The Authority also found the centre did not have a reasonable basis to conclude the doctor’s conduct towards the board, or his father’s response to his possible dismissal, so impaired the employment relationship that it amounted to serious misconduct.
For these reasons, the doctor’s dismissal was unjustified, and he was awarded $10,000 compensation for hurt and humiliation, and compensation for three months lost remuneration.
Jones v George Weston Foods—ERA,Christchurch, September 2005
An Employment Relations Authority determination supported an employee’s personal grievance claim that he was unjustifiably dismissed. The employee had suffered a severe back injury which meant he had to switch to light duties and then, following surgery, take time off work. His employer believed his accident claim was fraudulent and engaged a private investigator. The investigator reported the employee had been seen doing activities on his farm which undermined his injury claims.
After considering evidence from the employee’s medical team and the employer, the Authority determined the employee’s injury was genuine and that there had been no misconduct. It also determined the company could not justify its decision to dismiss the employee.
The company was ordered to pay the employee compensation of $15,000 for distress and humiliation, compensation for lost remuneration, and costs of $70.
Wylie v Wellington Free Ambulance Service—ERA, Wellington, September 2005
The Employment Relations Authority dismissed an employee’s claim that her dismissal, for serious misconduct, was unjustified. The employee had fallen asleep on shift, for an extended period, when she was responsible for the service’s communications centre. Other workers said that, the day before, the employee had said she was going out drinking and would be late.
This allegation was taken seriously by the service’s manager as the employee was the team leader in charge of the communications centre and was responsible for supervising the workers and for dispatching ambulances as needed.
While the employee admitted to falling asleep on the job and was apologetic about her behaviour, she argued she was unable to take breaks and that her fellow workers could have woken her up. At a later date, matters to do with her health were brought up by other employees on her behalf.
The service’s manager did not accept the employee’s argument about breaks. He considered the information about her health but did not believe it showed her condition would lead to a greater risk of falling asleep.
The Authority determined that what a fair and reasonable employer would do in any particular circumstances had to be grounded in the business of that employer. In the case of the service, the manager was entitled to conclude he had lost trust and confidence in the employee and follow the service’s disciplinary policy. It also determined the process followed by the service’s manager was a fair one, and that other workers did not have a responsibility to wake up the employee when she fell asleep.
Quality Services Enterprises v Hunwai—Employment Court, Wellington, August 2005
Interpretation of a long service leave provision in a collective employment agreement was the sole concern of this Employment Court decision. The defendants, who were all long-term members of the Service and Food Workers Union, argued they were entitled to long service leave based on their service as cleaners at Hutt Hospital, rather than the length of their employment by Quality Services Enterprises.
They had all worked as cleaners at the hospital for between 16 and 34 years. In that time they had been employed by a number of different companies contracted to the hospital. Quality Services Enterprises had been their employer between 1994 and 2002.
In a challenge to an Employment Relations Authority determination, the company argued the definition of “current continuous service with the same employer” meant current continuous service with them, rather than their competitors who had held the hospital contact in the past.
Judge Shaw found an employee’s entitlement to long service leave is calculated by reference to the length of service only with the employer party to the employment agreement. If the defendant’s interpretation was to prevail it would virtually eliminate the employer party to the agreement from the clause in question.
She found that the clause had to be read in context of other relevant clauses in the agreement. In each of those cases, entitlement to leave was for employees who were defined as employed by the employer party to the employment agreement.
Judge Shaw also found reference to ‘predecessors’ in the leave clauses was to the predecessors of Hutt Hospital, not to employers contracted to employ staff at those premises. This meant the defendant’s entitlement to long service leave was based on their service at the hospital while employed by Quality Services Enterprises.
Hudson v Air New Zealand—ERA, Auckland, July 2005
An Air New Zealand employee’s claim that her dismissal was unjustified was upheld by the Employment Relations Authority, which also ordered significant remedies. The employee worked for Air New Zealand as a customer service agent and also carried out the more responsible duties of a leading airline clerk. Due to the company’s contracts with other airlines, her role sometimes included the provision of certain customer services to passengers on other airlines.
After receiving three complaints about the employee’s interactions with other staff and customers, the airline embarked on a disciplinary process, resulting in the employee being dismissed for serious misconduct. While the employee claimed her dismissal was unjustified, the company said the dismissal was justified in all respects.
The Authority determined the company was influenced in its decision to dismiss the employee by the existence of a final written warning. However, the warning was over 14 months old and, in that time, the company had given the employee the opportunity to work in a more responsible position.
As a result, the Authority determined the employee had been unjustifiably dismissed and ordered costs for lost wages and compensation. It also found Air New Zealand’s opposition to the employee’s reinstatement derived from its conclusion she was guilty of serious misconduct. The Authority disagreed with this and ordered her reinstatement.
But the employee’s awards were ordered to be reduced by 10 percent because, although her dismissal was not justified, she had not met the company’s expected standard of customer service.
—Selected and written
by Miriam Bell
Previous Employment Case Notes
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