Employment case notes (ET 116)

Farley v Nugget Point Resort Ltd—ERA, Christchurch, November 2006

A young hotel manager was awarded almost $15,000 when his claim of unjustifiable constructive dismissal was upheld by the Employment Relations Authority.

Employed in September 2004, the employee’s relationship with his employers took a downward turn in December that year. He claimed he noticed a change in their treatment of him as early as mid-November, but it was a disputed weekend of leave that triggered the final breakdown in the relationship.

His employers claimed the employee took a day in lieu that he had not earned, left town for a weekend away with his partner, and then dishonestly claimed a sick day. The employee denied these claims. The dispute ended in a disciplinary meeting and, later that week, the employee read a draft letter in one of his employer’s files which said the issue meant his employers were reconsidering his long-term position.

This led the employee to visit his doctor who advised him to take a few weeks stress leave. However, during this period of leave, his employers constantly contacted him, behaved in a bullying fashion, and stopped paying him.

When the employee returned to work he was informed he was not needed. In response, he resigned and laid a personal grievance complaint with the authority. His employers then laid a counter-claim alleging the employee had accessed private files, taken a copy of their customer database, and owed them money for a number of incidents.

The authority found his employers had some “existing concerns and trust issues” with him prior to the disputed weekend, and that he had breached their trust when he accessed the private files. The rest of the counterclaims were not upheld.

But it found the employee had been treated unfairly on a range of issues—particularly while he was on stress leave. It also found the employee’s actions had not contributed to the final situation and that he had been unjustifiably dismissed

The employee was awarded $10,000 compensation, as well as payment for one sick day and half a lieu day, and several weeks lost wages. Costs were reserved.

Head v Goodman Fielder NZ Ltd—ERA, Christchurch, October 2006

A claim of unjustified dismissal, by an employee who persistently falsified his time records, was not upheld by the Employment Relations Authority.

The employee had worked as a baker for the company since 1999. In 2004, he moved into the role of health and safety co-ordinator for the Dunedin branch. Although he was paid less in this role, up to 50 hours a week of work were available. The employee claimed his manager told him he would be paid for 50 hours a week—even if he worked less.

Hours of work at the factory were established by employees clocking in and clocking out of work. But the employee claimed he spoke to his manager about this and was told that “if you need to, finish working, shoot home and then come back later and clock out”.

The employee’s erratic hours of work were noted and he was monitored over a week. In that time, the employee was caught on camera leaving work and coming back to clock out on the clocking machine three times. After a disciplinary meeting, the employee was dismissed for serious misconduct.

Although he admitted the conduct, he claimed his dismissal was unjustified because of an agreement with his manager which allowed him to falsify his clocking out times. He also claimed the dismissal process had been unfair. However, his manager denied all the employee’s claims.

The authority determined the employee had been falsifying his time records. It also determined that the manager had not authorised the employee to leave work and return later to clock out. Further, the authority determined there had been a full and fair investigation into the employee’s conduct, that his dismissal was justified, and he was not entitled to any remedies. Costs were reserved.

Langman v Ludowici Packaging Ltd—ERA, Wellington, October 2006

The Employment Relations Authority delivered a mixed verdict on an employee’s claims that her redundancy was not genuine, and that she had been unjustifiably dismissed.

The employee began work at the company in early 2005. Unfortunately, the company’s main product lines had declined considerably over the last few years. This meant the New Zealand operations were under review in 2005 and, throughout that year, a number of changes were made to try and streamline operations. It was decided to review the employee’s position in November.

Several meetings between the employee and management took place, but the employee was ultimately made redundant in December. The employee believed there was a conspiracy against her and that her redundancy was predetermined. She also claimed the process had been unfair on a number of counts. The company said the redundancy was not a sham, and that it approached the restructuring process with an open mind.

The authority found the evidence supported the company’s claim that the redundancy was genuine, and that there was no evidence to support the employee’s claims of conspiracy. It also found the employee had been unjustifiably disadvantaged, and that there were a number of procedural failures, in the process.

However, the authority found the company’s procedural failures did not cause the employee to be unjustifiably dismissed—because her redundancy was genuine. The employee was awarded $4000 compensation for humiliation. Costs were reserved.

Stabb v the Preliminary Proceedings Committee of the Nursing Council of NZ—High Court, Wellington, October 2006

The behaviour of a nurse who threatened and swore at a mentally ill health-line caller did amount to professional misconduct, and deserved the penalty imposed by the Nursing Council, according to a High Court decision.

While working the night shift on a mental health phone line the nurse received a call from Z. During the call, Z said he had a gun and was going to commit suicide, and then made threats of violence towards the nurse and his family. The nurse communicated the situation to a colleague who called the police. Under police instructions, the nurse managed to keep Z on the phone for an hour. The police managed to gain control over Z, get him assessed, and then hospitalised. The nurse provided a report of the incident to his team leader.

However, after reading the report, the team leader became concerned about the way the nurse had handled the situation. A subsequent investigation led to the nurse’s dismissal. At some point in the process, the nurse spoke to the media about the case and identified Z. His employer then made two complaints of professional misconduct to the Nursing Council. The council found both charges proved and ordered that the nurse’s name be moved from the Register of Nurses for a year.

The nurse appealed against the council’s finding about his handling of the incident with Z. He said that what he did was, at worst, conduct unbecoming a nurse. He also appealed against the council’s order to remove his name from the register. In his view, the penalty was excessive.

Justice Wild found the council’s charge of professional misconduct had been proved and dismissed the nurse’s appeal.

After assessing a number of other cases, he also dismissed the nurse’s appeal against the penalty imposed by the council.

He also stated the decision of the Nursing Council would remain in place in all respects. No order was made to costs as the nurse had legal aid.

Palmer v Bluescope NZ Steel Ltd—ERA, Auckland, September 2006

An admitted alcoholic employee’s claim of unfair dismissal, as a result of a positive breath test, was upheld by the Employment Relations Authority.

In September 2005, the employee voluntarily told the plant manager of his alcohol problem with which he needed help. Prior to this admission he had never displayed any performance or impairment problems.

After consulting with the company doctor and two senior HR staff, it was decided to grant the employee unpaid leave so that he could undertake a detoxification programme. An extensive two-year ‘Rehabilitation Agreement’ was also drawn up. A central condition of this agreement was ongoing random breath tests and instant dismissal if a test was failed. The employee signed the agreement.

The employee returned to work in January 2006. After three negative breath tests, he failed a test in February. His reading was just above the limit set and he said he had not consumed any alcohol. Later that day he was given another test, which he also failed, but he was not offered a blood test.

Two disciplinary meetings were held. At each of them the employee protested his innocence. However, the plant manager decided he had breached the agreement and that he could not trust him to stop drinking. The employee was dismissed.

The authority found the initial agreement was unfair—especially given the employee had informed the company of his alcohol problem. It also found little consideration was given to the employee’s willingness to undergo random tests, to exploring other possible reasons for the positive reading, to the man’s lack of performance issues, or to alternatives to dismissal.

As a result, the authority found the dismissal was unjustified and ordered the parties involved to meet and try to resolve the issue of remedies. Costs were reserved.

Sullivan v Maxwell Marine Ltd—ERA, Auckland, July 2006

The Employment Relations Authority upheld a former storeman’s complaint of unjustified dismissal, but overturned his claims of demotion, discrimination and engineered dismissal to avoid redundancy entitlements.

Company management had become increasingly concerned by “sloppy work practices”, and cautioned staff against ignoring stock receival, storage and despatch procedures. Management discussed the issue in staff meetings in October 2004 and, again, in April 2005.

According to the man’s manager, other staff responded by being more careful in their work but the man did not. This resulted in a series of meetings and warnings, three of which were final, throughout 2005, and culminated in the man’s dismissal in December. However, the man claimed that the warnings were unjustified, that he had not been provided with specific allegations, that he had not been given a chance to respond to the allegations, and that the whole process was unfair.

The authority determined the man had been given more chances than required by the company’s five-step warning process, but that he was not given sufficient information and opportunity to prepare for the disciplinary meetings. As a result, the authority found the process was not fair and reasonable—even though the outcome might have been the same had the correct process been followed. The man’s dismissal was unjustified and he did have a personal grievance.

However, the authority also determined the man’s claims of demotion, discrimination and an engineered dismissal were without substance. This contributed to a reduction in the remedies awarded.

The man was awarded four weeks ordinary wages and $1000 compensation for hurt and humiliation. Costs were expected to be agreed on by the parties involved.

—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