Employment case notes (ET 108)

Mullay v Southern Institute of Technology—ERA, Christchurch, November 2005

An Employment Relations Authority determination did not uphold an employee’s claim that she had been unjustifiably dismissed by the institute she worked for as a photography tutor.

After the employee had been working full time at the institute, tutoring in a diploma course for a year, the institute decided to stop providing the diploma and offer a degree course instead. The diploma course was to be phased out. This would impact on the photography department’s staffing arrangements due to the reduction in students and teaching hours. As a result, the employee was made redundant.

The employee claimed her redundancy was not genuine, that she had been promised a partial redundancy and, later, casual work, and that a complaint she made regarding an altercation between her and the programme management impacted on decisions made about her situation.

The institute denied the employee’s claims, and also submitted that the redundancy was genuine and that its staff had acted in an appropriate and procedurally fair manner.

In its determination, the Authority said it was satisfied the employee’s redundancy was genuine and that her position no longer existed. It also found the institute dealt with the situation in accordance with the process in the collective agreement, there was no promise of a partial redundancy, and that the employee’s dismissal was justified.

Costs were reserved.

King v PPCS Richmond Ltd— Employment Court, Auckland, October 2005

The Employment Court overturned an employee’s challenge to an Employment Relations Authority determination that his dismissal for serious misconduct was justified. The employee worked for the company as a meat processing worker on the nightshift. One night he got into an altercation with the man working next to him which culminated with the employee striking the other man on the head. The other man required medical treatment and complained to the company.

The company embarked on an investigation and then a disciplinary process into the incident. The employee did not deny the incident had occurred, but claimed he had acted in self-defence because the other man had been aggressive towards him. However, after the investigation and a series of meetings with the employee and his union representative, the company decided to dismiss the employee for serious misconduct.

The employee claimed the company failed to properly investigate his assertion that he had acted in self-defence, that the company’s inquiry into the incident was conducted unfairly and had prejudiced his position, and that the company had failed to consider all relevant circumstances.

Judge Colgan found the employee did establish he had been unjustifiably dismissed and that there were procedural breaches in the investigation and dismissal process. But the judge also found the incident was of sufficient seriousness to warrant being classified as serious misconduct and worthy of dismissal. For this reason, he found the dismissal was justified and the employee’s challenge was dismissed. Costs were reserved.

Hireme v Acrow Ltd—ERA, Auckland, October 2005

An employee’s claim that he was unjustifiably dismissed was upheld in an Employment Relations Authority determination, despite his culpability in his dismissal.

The employee had left the site he was working on, along with two other employees, and gone to a pub. All the men returned to the site, briefly, later in the day and the employee in question had then gone home. When asked to explain, the employee admitted the incident but said it was his birthday and a hot day. All three men were dismissed for serious misconduct.

However, the employee then became aware of an almost identical incident involving another employee who had not been dismissed, but instead given a warning. The employee claimed this meant he was treated in a disparate manner and the actions of the company were unfair and unreasonable.

In response, the company claimed the circumstances had been different in a number of ways. The company also said they now thought the other incident was not handled properly and the other employee should have been dismissed as well.

The Authority determined there had been significant disparity in the treatment accorded to the two employees for largely identical misconduct. It also determined the incident did not actually constitute serious misconduct, but was less serious misconduct which warranted the issuing of a warning.

But the Authority accepted the company’s claim that the employee was responsible for the actions leading to his dismissal and did not award him any remedies.

Patterson v Millennium Electrical Ltd—ERA, Christchurch, September 2005

The personal grievance claim of an employee who falsified his qualification for the job received a mixed response from the Employment Relations Authority determination because his dismissal process was flawed.

When the company employed the man, it was on the grounds he was a qualified, registered electrician in Australia. The company employed him as a senior electrician on the grounds of his supposed experience. However, with in a short time, a number of complaints about his performance were made to management by other employees.

Initially, the company decided to meet with the man to discuss their concerns about his performance. But, when investigating his claims about his Australian work background, the company began to doubt their truth. At a first meeting, the man was told he had to prove his Australian registration or lose his job. By the second meeting the company had evidence to indicate the man’s claims were bogus. As a result, he lost his job.

However, the company did not tell the man his employment was at risk prior to the first meeting, nor did they give him an opportunity to get support or representation in response to their concerns. He was also not given the opportunity to address the company’s allegations.

For these reasons, the Authority determined the man had a genuine personal grievance. But it also determined the man’s claim to be an Australian registered electrician was false, that he had contributed to his dismissal, and that he was not entitled to any remedy.

Prince v Masterton Supermarkets Ltd—ERA, Wellington, September 2005

A supermarket employee’s claim that he was unjustifiably dismissed from his job was upheld in an Employment Relations Authority determination. The employee had worked for the supermarket company since mid 2002. In 2004 the company embarked on a restructuring operation, which the employee was initially told would have no impact on his position. But, when the employee returned from taking annual leave, he was told he was being reassigned.

The employee claimed he was told he would be fired if he did not take up the new role he was being offered, and that there had been complaints about his conduct. He says that, at a later meeting with the company—after he consulted his union—he was further told there were concerns about his performance. Feeling he had little option, the employee resigned.

The company denied the employee’s claims and said he resigned on his own account. But the Authority determined the company had not previously raised any concerns about the employee’s performance or conduct. In fact, he had been offered a bonus prior to going on annual leave.

It also determined that, after the employee had consulted his union, the company exerted pressure on him to resign and threatened to “dig up the dirt” on him if he did not bow to their wishes.

For these reasons, the Authority found the company had grossly breached its good faith obligations when dealing with the employee and, as a result, he had been unjustifiably constructively dismissed. The company was ordered to pay the employee three months salary compensation and $10,000 compensation for humiliation.

—Selected and written
by Miriam Bell

Previous Employment Case Notes

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