Employment case notes (ET 111)

Pilcher v Fonterra New Zealand Ltd—ERA, Auckland, February 2006

A former Fonterra employee’s claims of bullying and unjustified dismissal were rejected by an Employment Relations Authority determination in favour of the company. The employee said she was bullied by her manager, that the company failed to rectify the situation, and that this led to a disadvantage in her employment. She also said a performance management plan, which ultimately resulted in her dismissal for poor performance, was unfair and her dismissal was unjustified.

However, the company denied all of the employee’s claims. It said the issues between the employee and her manager had been investigated and resolved. It also said it had conducted a fair and reasonable process with the employee, in an effort to help her improve her performance, but she had failed to make any substantial improvements and so her dismissal was justified.

The authority found the employee’s manager’s conduct did not amount to bullying and that personality differences did not factor into the company’s decision to dismiss the employee.

It also concluded the employee did not have grounds for a personal grievance and that her dismissal was justified because the company’s actions were what any fair and reasonable employer would have done in the circumstances. Costs were left up to both parties to try and resolve.

Thamer v Massey University—ERA, Wellington, January 2006

Allegations of bullying, slavery at work and racial harassment made by a Massey University employee were dismissed by the Employment Relations Authority.

The employee, who still works for the university, claimed that various actions by university representatives—particularly his manager—have disadvantaged him at work and were unjustified. His claim was initiated because he felt an earlier agreement had been breached, and he had been subjected to ongoing harassment by the university. The gist of his claim was that he believed he had been required to do not just his own job, but that of several others.

This meant he had to carry out a lot of extra work yet, despite this, he was denied overtime by his manager. He also claimed his manager had placed him under unreasonable scrutiny and criticism, and that the university had ignored and/or delayed requests of assistance from him.

However, while the university acknowledged there was a staff vacancy in the employee’s department, his manager had decided his workload issues were to be dealt with by prioritisation, delegation, or contracting out.

The authority determined the employee had been unable to accept decisions made by his manager in relations to the level of servicing required in his role. He had voluntarily worked overtime although it had not been approved and the university was concerned about the effects on his health.

It also found that, despite the difficult relationship between those involved, there was no evidence of threatening behaviour or racial harassment directed at the employee, and that his employment had not been disadvantaged. The employee’s claim was dismissed and he was ordered to pay an award of $3000 to the university.

Vailima v General Distributors Ltd—ERA, Wellington, March 2006

The Employment Relations Authority denied a Countdown employee’s request that she be reinstated onto the company’s payroll and paid for the entire duration of time that she has been on unpaid sick leave. Since November 2005, the employee has been on unpaid sick leave from her job, as she has exhausted her paid sick leave entitlement. The employee, who remains unable to work because of her health, is suffering from stress which she attributes to work-related matters.

However, the company does not accept the employee has suffered from unjustifiable workplace stress or practices and has declined to pay her wages while she is unable to work, although when her health improves she will be returning to her job. The company also says the employee had not raised the issue of stress, or excessive hours, with them before her health broke down.

The authority determined that, while the employee did have an arguable case, the balance of convenience, and the overall justice of the matter, both favoured the company. This meant the employee’s request was dismissed and she will remain without income until she is able to return to work.

An authority investigation into the issues said to have caused the employee’s work-related stress is scheduled for later this year. But the authority encouraged both parties to take preliminary steps towards addressing those issues prior to that investigation.

Crook v Sovereign Insurance NZ Ltd—ERA, Wellington, March 2006

An employee’s claim that her employer failed to provide her with a safe workplace, which left her with an illness making her unable to work, and that this contributed to the termination of her employment, was dismissed by the Employment Relations Authority.

From the start of her employment at the company, the employee—who was a manager—had encountered major problems with one of her team members. These problems were dealt with by the company over a long period and resulted in the dismissal of the problem employee, but they caused the employee a lot of stress and resulted in her development of a severe depressive illness.

The employee then had some time off for recovery. She made significant progress but, on her return to work, she found she had a new manager. The employee and her new manager did not get along and their relationship deteriorated rapidly. This led to the employee relapsing. Eventually, an investigation into an issue involving the employee led to her resignation.

While the employee claimed the company had breached its duty of care by not providing her with a healthy and safe workplace and also that her manager had bullied her, the company disputed those claims.

The authority found the employee’s mental illness had been caused by work factors. However, it also found the company was not aware of the severity of the employee’s illness and that there was no evidence of managerial bullying. Further, it found the company had not breached any of its obligations towards the employee and did not fail to provide her with a safe workplace.

The employee’s claims were dismissed and costs were reserved.

Association of Staff in Tertiary Education v Webster/UNITEC— Employment Court, Auckland, March 2006

The Employment Court upheld an Employment Relations Authority interpretation of provisions dealing with organisational change in the UNITEC staff collective agreement. A group of limited tenure academic staff were made redundant, due to a staff surplus, before their fixed-term contracts expired. They were not paid redundancy compensation, which they believed they were entitled to. The institute disagreed on the grounds that the relevant provision in the collective agreement did not cover limited tenure employees.

The staff collective agreement divided employees into three categories according to the nature of their appointment. In the collective agreement there was also a provision dealing with organisational change. Unfortunately, it was not clear whether this provision applied to the staff who were made redundant. If it was found to, those employees would be entitled to redundancy compensation.

Judge Court found the dispute provision was unclear but that it was intended to apply as a whole only to tenured employees, as opposed to limited tenure employees. He also found the provision did not apply to staff who were employed on the basis of limited tenure appointments, and whose appointments had not reached the end of their fixed term.

For this reason, he found the group of staff who were the plaintiffs were not entitled to redundancy compensation and dismissed the challenge to the authority’s determination. He did not give an order for costs.

—Selected and written
by Miriam Bell

Previous Employment Case Notes

Issue 148
Issue 147
Issue 146
Issue 145
Issue 144
Issue 143
Issue 142
Issue 141
Issue 140
Issue 139
Issue 138
Issue 137
Issue 136
Issue 135
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Issue 128
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Issue 120
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Issue 114
Issue 113
Issue 112
Issue 111
Issue 110
Issue 109
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Issue 107
Issue 106
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Issue 104
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Issue 102