Employment case notes (ET 112)

Himona & Paora v Carter Holt Harvey Ltd—ERA, Auckland, May 2006

The Employment Relations Authority dismissed two pulp mill operators’ claims that they were unjustifiably dismissed after they were observed standing on a moving conveyor-belt, in breach of company policy, several times.

In August 2004, two long-time employees discovered problems with a conveyor-belt. Their attempts to fix the problem were unsuccessful, so both operators climbed on to the moving conveyor to try and resolve the problem.

A supervisor observed this and told them to get off. When the situation was repeated several times, the supervisor reported them to management. After a disciplinary process, both employees were dismissed for serious misconduct.

The two employees said their dismissal was unjustified because, although they knew there was an official policy prohibiting the process, their actions were a long-standing and established practice which was known to the company. However, the company denied the dismissals were unjustified. It said their work rules provide for dismissal as a penalty for serious breaches of safety policies. It also said the subsequent disciplinary process was fair and reasonable.

The authority determined the company had carried out a full and fair investigation and had given appropriate consideration to the employees’ explanations. It also found the actions of the two men, even in the absence of the company’s policies, were extremely dangerous, and they had ignored repeated instructions to get off the belt.

For this reason, CHH was fairly and reasonably entitled to view the actions of the two men as serious misconduct warranting dismissal, and so the dismissal was justified. Costs were reserved.

Jack v Faithfull Funeral Services Ltd—ERA, Auckland, March 2006

An employee’s claim that his redundancy was not genuine and that he had actually been unjustifiably dismissed was overturned by an Employment Relations Authority determination.

The man claimed he had been misled and deceived about the genuineness of the reasons for his redundancy and that his former employer did not act in good faith. His allegations of misleading, deceptive conduct revolved around the intended allocation of work following the restructuring which led to his redundancy. Another employee subsequently took on some of the man’s former duties, even though he had been assured the other employee would not get his job.

However, the funeral director said he had acted in good faith and the man’s redundancy had been genuine. He claimed that, when the man was made redundant, he had intended to take on the duties himself. Not long after, his PA asked for a reduction in hours and he realised his search for a trainee funeral director was unsuccessful. As a result, he decided to employ the other employee as trainee director, but with some additional duties.

After consideration of the timing of these decisions, the authority determined there had been no breach of good faith regarding the genuineness of the employee’s redundancy. Furthermore, although the funeral director was “less than full and frank” about his plans for the other employee, this failure was not deliberate, serious or sustained.

The authority also declined the employee’s request to cancel the agreement terminating his employment, made no orders for penalties, and reserved costs.

Johnson v Badminton New Zealand Ltd—ERA, Christchurch, March 2006

An employee’s claim that she had been constructively dismissed, because Badminton NZ had not adequately supported her in dealing with a bullying working relationship, was not upheld by the Employment Relations Authority.

The employee worked for the organisation for over a year and, during that time, she had difficulties in her relationship with a key staff member from one of Badminton NZ’s member associations. She claimed her problems with the person began soon after her arrival and, despite resolution attempts, they consistently escalated.

Although she regularly expressed her concerns to her employer, she felt they were not dealt with appropriately. This situation led to her resignation, and the claim her employer had failed to provide her with a safe workplace.

However, the organisation claimed it had acted on the employee’s allegations. It said it had a limited level of awareness about the situation and that it had acted reasonably given its knowledge. It also noted the difficult person was not actually employed by the organisation.

The authority determined the employee was subjected to unprofessional, bullying behaviour and had made some of her concerns known to her employer. But the authority also found the organisation had not been aware of the full extent of the problems, or of the employee’s concerns.

Furthermore, the organisation had not breached its duty to provide a safe workplace and, given its knowledge of the situation, had acted reasonably and could not have known the employee would feel she had to resign. Costs were reserved.

Johnston v Balance Agri-Nutrients Ltd—ERA, Wellington, March 2006

Golfing enthusiasm led to an employee’s dismissal for serious misconduct, yet the Employment Relations Authority determined the man should be reinstated because his dismissal was unjustified.

The man was employed as a technical sales representative by the farmer owned co-operative. Although the man had an employment agreement, he never reached an agreement with his manager as to his starting and finishing times.

As a keen golfer the employee regularly participated in industry golf tournaments. He kept his manager informed about this as his manager saw it as a potential sales opportunity. However, the man also played regular rural club days without telling his manager.

After the employee under-performed in a customer satisfaction survey, his manager investigated how much time the employee spent playing golf. The manager’s discoveries concerned him. A disciplinary investigation meeting was organised.

Unfortunately, the meeting did not go well. There was a dispute over hours of work and the decision was made to dismiss the man for serious misconduct. The man’s response was threatening and abusive.

The authority determined the employee had worked—and golfed—on the premise that “what the organisation didn’t know about wouldn’t hurt it”, but that a number of reasons meant his misconduct was general rather than serious. As such it warranted warnings but not summary dismissal. It also found he was subjected to a substantially unfair procedural process.

For these reasons, the authority determined the employee’s dismissal was unjustified and that he should be reinstated to his former position. It also ordered that he be paid for his lost remuneration. Costs were reserved.

Craigie v Air New Zealand Ltd— Employment Court, Auckland, March 2006

The Employment Court ruled against an Air NZ employee’s challenge, to an ERA determination, and found his dismissal for serious misconduct was justified.

Originally employed as a pilot, by 2000 he had been promoted to a command position. In 2002 he was stood down, due to extreme stress and clinical depression, and remained on stand-down until early 2003. During this time, Air New Zealand became aware of three incidents which it used to dismiss him for serious misconduct. After a lengthy investigation the man’s employment was terminated late in 2004.

The employee’s technical ability to fly planes was not an issue in the investigation. Nor were the facts of the incidents—which included two domestic-related assault charges, one of which resulted in a conviction, and two Civil Aviation Authority convictions for certification issues.

The dispute between the employee and Air New Zealand was about the relevance of each incident to the man’s employment, as well as the extent of the company’s knowledge of the incidents at critical times.

While the employee said the domestic incidents were private and were not related to his employment, he expressed regret about the CAA convictions. He had also obtained favourable psychologist reports about his ability to deal with stress.

However, the company claimed the incidents were examples of poor judgement on the employee’s part. It also claimed he failed to take responsibility for the incidents and to understand the repercussions they had on the employment relationship.

Judge Shaw found the two domestic incidents could not reasonably be regarded as serious misconduct for the purposes of the man’s employment, especially because he had accepted responsibility, and expressed regret, for them.

Despite this, the judge found the CAA convictions and an adverse finding of credibility against him from the District Court had destroyed the man’s employment relationship with Air New Zealand. The decision that this amounted to serious misconduct—particularly given the nature of the company’s operations—was one open to a fair and reasonable employer.

The judge found the employee’s dismissal was justified, and dismissed his challenge to the ERA’s determination. Costs were left to the parties involved to settle.

Kitchen v Farmers Transport Ltd—ERA, Wellington, March 2006

A long-serving employee’s claim that he had been unfairly and wrongly dismissed was upheld by an Employment Relation Authority determination.

The man had worked in the rural transport industry since 1961. Until his dismissal in 2003, all his work was for Farmers Transport or its predecessor companies. In 2002 senior management became concerned about the profitability of the Feilding branch of the company, which the man managed. The executive chairman decided the employee should be replaced as branch manager, although he was asked to stay on as assistant manager.

The man accepted this proposal but became increasingly concerned about his future at the company. He expressed this to the executive chairman several times and, each time, he was reassured. Then, in September 2003, the man was asked to attend a meeting, at short notice. At that meeting he was made redundant, told not to return to work, and paid for three months in lieu of notice.

The authority determined the executive chairman’s decision to hire a new branch manager, while retaining the employee as an assistant manager, introduced extra costs which were subsequently removed by making the man redundant.

It also found the procedure used to make the man redundant was not procedurally fair, that the man was not given a dignified exit, and that the company did not put sufficient effort into trying to find a new job for the employee—especially given his service record.

The authority found the man had been unjustifiably dismissed on both substantive and procedural grounds. He was awarded $8,000 compensation, $19,000 lost remuneration, and $3,000 costs.

—Selected and written
by Miriam Bell

Previous Employment Case Notes

Issue 160
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