Employment case notes (ET 113)

Iosefa v Canterbury Hospitality Group—ERA, Christchurch, June 2006

An employee’s claim of unjustifiable dismissal was not upheld by the Employment Relations Authority because it preferred her employer’s version of events.

The employee was summoned to a disciplinary meeting with company management after another employee observed her giving away free drinks. At this meeting she was given a final warning about her behaviour. Several days later, the employee was asked to secure a significant amount of money in the office safe. The employee disappeared for over 10 minutes and was subsequently discovered in the office, with her boyfriend in a compromising position, and the money unsecured. As a result of this, she was asked to attend another meeting and was summarily dismissed.

Although the employee admitted to aspects of the two incidents, she denied other claims and also contested the process the company used in the two disciplinary meetings. However, the company claimed it has followed a fair and reasonable process in both situations.

The authority found that, although it was not entirely clear if the employee had been told she could have representation at the meetings, the disciplinary process followed by the company had not been fundamentally flawed. It also found a fair and reasonable employer would reach the conclusion that the employee had, by her admitted conduct, committed serious misconduct ultimately by a single, but major, error of judgment.

Costs were reserved.

Thomas v Signs One Ltd—ERA, Auckland, June 2006

A young school-leaver was awarded thousands of dollars by the Employment Relations Authority for the “completely inexcusable” treatment he experienced in his first job.

The employee was 15 when he left school and began to work full-time as a trainee sign writer. Early on, his employer began to use derogatory language towards him on a daily basis. This behaviour grew steadily worse.

Because he was intimidated by his employer, the young man did not confront him. But, after about four months of this treatment, the employee reached breaking point. His employer then ordered him to leave and not return.

The young man left in a distressed state and, after getting legal advice, did not return. His former employer did not respond to two invitations to attend mediation. As a result, the young man turned to the authority. His employer did not respond to, or comply with, any of the authority’s requests. The authority did not think there was “good cause” for this failure and, therefore, acted as if he had.

The authority accepted the young man’s unchallenged evidence and determined his “sending away” had been unfair, unreasonable, improper, and unwarranted. As there was no contributory fault on the young man’s part, it was an unjustified dismissal and he a valid personal grievance.

Furthermore, the authority described the employer’s behaviour as “deplorable conduct that is not to be tolerated in our workplaces” which was “further compounded by the power imbalance in the relationship”. The young man was awarded $5000 compensation for hurt, humiliation, loss of dignity and injury to his feelings.

Prins v Tirohanga Group Ltd— Employment Court, Auckland, May 2006

Lies and sexual harassment contributed to an Employment Court judge’s decision to increase the remedies granted to a couple in an earlier Employment Relations Authority determination.

Since 1996 the couple had worked as the live-in co-managers of an accommodation complex in Taupo. In early 2001 the complex was purchased by the Tirohanga Group.

Shortly after the purchase, the owner of the company began to pressure the couple to accept different employment arrangements. However, the couple felt the various proposals made no economic sense for them and kept declining the offers.

In October 2001 the owner informed the couple he had sold the complex and that new owners would be taking over the business. This was not true. The owner had actually appointed new managers, who he instructed to convince all the existing staff they were the new owners, and who did this. The couple believed they were losing their jobs and their employment did, in fact, conclude at the end of November 2001.

When the couple found out about the deception they went to the authority over what they claimed was their unfair and unjustified dismissal. Furthermore, they claimed the owner had forged documents to add credence to his side of the story. They also alleged the owner had sexually harassed the female employee.

The authority had found in the couple’s favour, but the couple felt the remedies ordered were insufficient given the economic and non-economic consequences of their dismissal.

Judge Colgan also found in the couple’s favour, especially given the owner’s proven pattern of lying. The judge upheld all the couple’s claims, although he expressed some doubt as to the extent of the claimed forgeries. However, he also found the authority had not awarded adequate remedies to the couple and increased them to what he considered an appropriate level.

As the male employee had to stop work around the time their employment ended, due to a heart attack, he was not awarded remuneration. The female employee was awarded remuneration of $25,896 and her sexual harassment compensation was increased to $4000. The couple were also awarded a range of compensation sums, and the company owner was ordered to pay a penalty of $5000 to the court. Costs were reserved.

De Souza v Waikato Students’ Union—ERA, Auckland, May 2006

A former student union employee was awarded one of the highest sums yet for hurt and humiliation in an Employment Relations Authority decision.

The employee started work at the union in April 2002, and was appointed to a paid position later that year. Around the same time, she was also elected 2003 vice president of the union. A Mr Philpott was elected 2003 president.

Mr Philpott strongly believed members of the executive should not also be union employees. This seems to have resulted in an extremely difficult relationship with the employee and, in turn, led to the employee’s resignation as vice president. The employee claimed she was the victim of Philpott’s bullying throughout 2003.

Late that year she took a week’s stress leave and, during this time, she was made redundant. The employee felt her redundancy was a “sham” and that unpaid wages were owing to her. However, the union said they took no ownership of the actions of the former president and they were unable to comment on issues relating to the employee’s redundancy as they were a new executive.

Eventually, the employee accepted her redundancy was not a “sham”. However, the authority found evidence showed Philpott’s behaviour was a deliberate and sustained attempted to cause her stress and humiliation. The levels of stress she experienced were described as a level more serious than most the authority had seen.

For this reason, the employee did have a valid personal grievance against the union because they failed in their duty to provide her with a safe workplace. The union was ordered to pay her $10,000 and costs were reserved.

Gollop v Canpac International Ltd—ERA, Auckland, April 2006

The Employment Relations Authority dismissed an employee’s claim that he had been discriminated against and unjustifiably disadvantaged.

As a result of a 2003 restructuring the man, who had worked for the company for 22 years, was redeployed to the day shift. However, because his redeployment was to a newly created position, the starting date for his “current continuous service” record became December 1 2003. Between October 2004 and September 2005, he was transferred back and forwards between the day shift and the afternoon shift several times.

The employee, who preferred the day shift, raised a personal grievance in relation to this. He alleged he was being discriminated against because he was the only operator transferred back and forth. This “pinball transfer situation” disadvantaged him because it meant his record of service was always the lowest which prevented him gaining a permanent day shift position. He also claimed this violated his human rights, on the ground of marital status, because it prevented him spending evenings with his wife.

However, the company claimed the transfers took place in a manner completely consistent with the collective agreement and were made for operational needs only. It also said new appointments to the afternoon shift meant the employee no longer had the lowest service record, and that he was second in line for a permanent appointment to the day shift.

The authority found the company had transferred the employee for operational reasons and had acted in strict adherence to the collective agreement shift transfer provision. It also found that the new afternoon shift appointment meant the employee would be relieved of the “pinball effect” he complained about. Furthermore, there was no marital status discrimination because the relevant definition of marital status did not apply to the employee’s situation.

The authority found the employee had not been discriminated against, or unjustifiably disadvantaged. No remedies or costs were awarded.

Black v Carter Holt Harvey Ltd—ERA, Auckland, March 2006

An employee’s claim of unjustified dismissal was rejected by the Employment Relations Authority which instead upheld his employer’s argument.

The man had worked at Carter Holt Harvey’s Whakatane mill for over 30 years. His duties included the washing of water pipes carrying the pulp product to the stock chests. On August 4 2003 contractors were employed to work on the stock chests. In preparation for this “group hold cards”, intended to prevent the operation of any plant in the area, were placed on the stock valves.

This is because the valves must be closed before anyone enters the area. If they are not, water can flow into the area causing injury or, if someone is in there, death. Shortly after the contractors’ arrival, they informed a supervisor there was stock on the floor of the chests. This meant the valves had been opened after the cards had been placed on them.

On questioning, the employee conceded he had opened the valves. He claimed his action was an instinctive one in response to some water splashing onto him. He also claimed he had not seen the cards and did not know the valves were isolated.

After an investigation, the employee was dismissed. The company said his actions were more than just careless given he had received the necessary training and that serious health and safety issues were at stake. While the company felt it had no choice but to dismiss him, the employee claimed his dismissal was unjustified.

The authority determined CHH had conducted a fair and reasonable investigation into the incident. It also determined the employee had full knowledge of the relevant policy, that the hold cards were clearly visible and the employee was aware of their existence.

For these reasons, the authority found the company was entitled to view the actions of the employee as being serious misconduct warranting dismissal and that his dismissal was warranted. Costs were reserved.

—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
Issue 134
Issue 133
Issue 132
Issue 131
Issue 130
Issue 129
Issue 128
Issue 127
Issue 126
Issue 125
Issue 124
Issue 123
Issue 122
Issue 121
Issue 120
Issue 119
Issue 118
Issue 117
Issue 116
Issue 115
Issue 114
Issue 113
Issue 112
Issue 111
Issue 110
Issue 109
Issue 108
Issue 107
Issue 106
Issue 105
Issue 104
Issue 103
Issue 102