Employment case notes (ET 119)
Nelson v Meadow Mushrooms Ltd—ERA, Christchurch, February 2007
Throwing a knife at another employee warrants instant dismissal, according to the Employment Relations Authority’s findings on an employee’s complaint of unjustified dismissal.
The employee had worked at the company for 19 years and was a popular team leader with an exemplary record. On the day of the incident, the employee had a ‘heated discussion’ with one of her team. The discussion ended with the man calling her abusive names, which the employee complained about to her superior. Her superior then spoke to the man about his behaviour, but the man did not apologise to the employee. This left the employee frustrated and angry, and resulted in her throwing a knife in the direction of the man’s working bay.
Only the man saw the employee throw the knife, but he reported it to the employee’s superior. At this point a meeting was called and apologies were made. However, as the incident was a breach of health and safety rules, it was considered to be serious misconduct and worthy of instant dismissal. This led the company to embark on an investigation process.
After the investigation was completed, it was decided to dismiss the employee. However, the employee claimed that what she did was not serious misconduct, that she had been provoked, that there was procedural unfairness in the investigation, and that she had been unjustifiably dismissed.
The authority found in favour of the company. It said it was open to a fair and reasonable employer to conclude the employee’s conduct, in throwing the knife, was serious misconduct and, as such, a deliberate breach of safety procedures.
The authority found the company’s investigation was full and fair and that, because the employee was a team leader with responsibilities and authority, the company was entitled to expect she would lead by example and maintain high safety standards. For these reasons, the authority found the employee had been justifiably dismissed. Costs were reserved.
Kingsford v Bodyworks Panel & Paint Ltd—ERA, Wellington, February 2007
The Employment Relations Authority did not uphold an employee’s complaints of verbal and physical abuse at his workplace, although it found the employee had been unfairly dismissed.
In 2005, the employee’s mother helped him get a job at the company. As the employee suffered from both dyslexia and Asperger’s syndrome he had poorly developed social and communication skills. This was made clear to the company’s owner who, in turn, communicated the situation to staff.
Initially, the employee performed well at his job, and began to participate in the workplace culture, which included exchanges of banter and much ‘colourful language’. Unfortunately, his performance soon started to deteriorate significantly. It also became apparent he did not understand the boundaries between swearing and abuse as well as other staff.
The decline in the employee’s performance led to a disciplinary meeting at which his performance and attitude were discussed. While the employee received a written warning, the company owner spoke to his other staff about their behaviour towards the employee. A new staff member was also hired so the employee would be able to work on his own.
Over the next few months, two further incidents involving the employee occurred. Both incidents involved verbal abuse from the employee, and the angry responses of those on the receiving end. After the first incident, the employee received another warning. After the second incident—which involved the company owner, the employee said he was quitting and left the workplace. A letter of dismissal was then sent to the employee. However, he claimed he had suffered disadvantage in his employment, as well as abuse, and had been unjustifiably dismissed.
The authority found the employee had not been subjected to any ongoing abuse, and had not been left in an unsafe work environment. It also found the employee’s disability made a difference to the situation, and that the employee had been unjustifiably dismissed—because of the lack of proper investigation into the final incident.
While the employee was awarded $6000 compensation, this was reduced to $2000 because of his contributory behaviour. Costs were reserved.
Clear v Waikato District Health Board—ERA, Auckland, February 2007
Allegations of bullying by an ‘organisational psychopath’ dominated the Employment Relations Authority’s determination on an employee’s claims of disadvantage and unjustified dismissal.
The employee, who is a qualified nurse and midwife, was employed by the DHB from 1969 until her dismissal in late 2004. Over that time she worked in a number of different areas at Tokoroa hospital, until 1987 when she started work on the hospital’s maternity ward.
By mid 2000 it was obvious the employee’s relationship with her clinical team leader had deteriorated to an unhealthy state. The employee believed her team leader was bullying her, that her team leader’s behaviour was increasingly controlling, and that her team leader had a ‘vendetta against her’.
In October 2000, the employee made her first formal complaint about her team leader’s behaviour to management. Over the next three years, the employee made a further three formal complaints about her team leader. A series of area managers dealt with these complaints to varying degrees although, ultimately, all attempts at resolving the situation failed.
During this time, the employee’s health deteriorated significantly, and she became obsessed with her work situation. By mid 2004, the employee had gone on indefinite leave, and there had been a breakdown in communication between her and the DHB. In late 2004, her employment with the DHB was terminated.
The employee complained the termination of her employment was unjustified, and reinforced her alleged bullying by her team leader. However, the DHB claimed it had tried to address, and resolve all of the employee’s complaints. It also claimed it had not been unsuccessful in doing so for wont of trying, and that the employee had effectively refused all suggested solutions to the situation.
The authority found the DHB’s handling of the first three of the employee’s complaints had not breached its duty towards her. In the case of the fourth complaint, the authority found the DHB had mishandled that complaint by failing to carry out a full and fair enquiry into the complaint. The authority found this to be a serious and sustained breach of duty.
However, the authority found that, although there was a dysfunctional relationship between the employee and her team leader, no bullying had taken place. It also found that until mid 2003 the DHB’s senior management thought the employee’s earlier complaints had been resolved successfully, and had no idea she harboured ongoing concerns. Furthermore, the authority found the employee had not suffered additional harm due to the DHB’s mishandling of her fourth complaint.
The authority upheld only one of the employee’s three disadvantage claims, and it found the employee had not been unjustifiably dismissed. Mediation was ordered to resolve any issues relating to costs.
Wall v Strategic Health Ltd—ERA, Wellington, November 2006
Attempting to obstruct an Employment Relations Authority investigation into an employee’s claim of unfair dismissal backfired expensively for the company involved. Not only did the authority find in favour of the employee’s claim, it also determined the company deliberately did not co-operate and that its inaction was wilfully contemptuous of the authority.
The employee had originally gone to the authority complaining of an employment relationship problem in relation to her dismissal. She said that when she returned to work after an injury, from which she had recovered, her employers said she was a risk under the Health and Safety in Employment Act.
Not long afterwards she was informed her employers wanted to consult her on a restructuring proposal relating to her job and, shortly after that, she was issued with a final warning to do with her performance and conduct. The employee felt this warning was unjustified and asked to discuss this and the restructuring proposal with her employers. She received no response to this request and, several weeks later, her employment was terminated via a letter.
The company claimed there was no fulltime role available for the employee, due to operational and financial reasons. It also claimed it had followed a fair procedure in its dealings with the employee.
However, the authority—which was unimpressed by the company’s conduct in relation to its investigation—found the company was unable to justify its decision to terminate the employee’s job on the grounds of redundancy, particularly as the decision was clouded by other issues. It also found the company had not dealt with the employee in the way a fair and reasonable employer would be expected to.
For these reasons, the authority found the employee had a personal grievance and was entitled to remedies to resolve her situation. The authority awarded the employee $4,888 for lost wages, $1,244 for holiday pay, $10,000 compensation for humiliation, loss of dignity and injury to feelings, and $2,451 for costs.
Holt and the Rail & Maritime Transport Union Inc v Toll NZ Consolidated Ltd—ERA, Christchurch, November 2006
An employee’s claim that his employer had breached the Holidays Act 2003, by denying him his choice of an alternative holiday day, was upheld by the Employment Relations Authority.
The employee works as part of a roster that rotates through nine distinct weekly shift patterns. This means the employee sometimes works on public holidays and, when he does this, he becomes entitled to an alternative paid day off. In September 2005 the employee requested an alternative day off on Sunday October 30 2005.
This request was denied although, after investigating, the employee discovered cover was available for the day in question. When he asked why his request had been denied, different managers gave him different responses. One indicated that it was up to the company to decide, while another said it was due to the extra costs involved with taking an alternative holiday day on a weekend day.
Along with his union, the employee wanted a determination on whether he has the right, under the Holidays Act, to decide when he will take an alternative holiday. He also claimed the company’s refusal was unlawful and a breach of not only the act, but his collective employment agreement.
The company did not deny it refused the employee’s request, but it claimed it had not breached the act. Furthermore, it asked for a determination on whether it can refuse to allow an employee to take an alternative holiday because the employee has not taken into account the employer’s view on when would be convenient for the holiday to be taken.
The authority found that an employer can not determine the date of an alternative holiday. Rather it found the act gives the employee the right to determine when to take an alternative holiday, whether or not the employer considers the timing reasonable. It also found that employees’ do not need to give a reason for why they want to take a particular day for their alternative holiday, as long as they give at least 14 days notice.
The authority determined that the company had breached the Holidays Act by not allowing the employee to take the alternative holiday he requested. However, the authority did not find it appropriate to impose a penalty. Costs were reserved.
—Selected and written
by Miriam Bell
Previous Employment Case Notes
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