Employment case notes (ET 120)

Housham v Juken New Zealand Ltd—Employment Court, Auckland, April 2007

Employers have a responsibility to critically assess all the relevant circumstances surrounding employees involved in a physical altercation at work, according to an Employment Court decision about an employee dismissed for fighting.
The employee was involved in a physical altercation with a labour hire contract worker at one of the company’s timber mills. While the employee claimed the altercation was initiated by the contract worker, and that he had pushed the contract worker in self-defence, the contract worker disagreed and claimed the employee had punched him.

As there were no witnesses to the incident, company management decided to re-enact the altercation. After the re-enactment, management decided the employee must have punched the contract worker and that, because of the company’s zero tolerance policy towards violence, the employee had to be dismissed. The employee claimed management had misunderstood his version of events and refused to accept his claim of self-defence, and that this amounted to unjustified dismissal.

Judge Colgan found the employee had acted in self-defence after being provoked by the contract worker. He said the company’s management had wrongly concluded that any altercation in which the employee participated, even to a lawful and reasonable extent, negated the significance of the particular circumstances in which the altercation occurred.

Although the Judge found the company had conducted an investigation that was fair and reasonable in many respects, in other important aspects it had failed to meet the applicable standards of procedural fairness and reasonableness. He concluded that a fair and reasonable employer would not have decided, given the circumstances, that the employee had been guilty of serious misconduct and had to be dismissed.
Furthermore, judge Colgan said there had been no culpable contributory conduct on the part of the employee, and that the employee was particularly badly affected by his dismissal—which was incomprehensible to him.

As a result of all these factors, Judge Colgan found the employee’s dismissal was unjustified, and that he was entitled to recover an amount equivalent to his remuneration loss, covering the time from his dismissal until March 2007, as well as the superannuation subsidy to which he was entitled. The company was ordered to work with the employee to calculate the amount owed. The employee was also awarded $20,000 compensation for non-economic loss.

Craig v Otago Hospitality Ltd—ERA, Christchurch, March 2007

An Employment Relations Authority determination upheld an employee’s claim of unjustified dismissal, despite finding his redundancy was genuine.

After many years work at one of the company’s taverns, the employee had a workplace accident which required an operation and then time off work to recuperate. Prior to the operation, he received a visit from his employer. While the employee claimed his employer only stayed for a few minutes to ask him when he intended coming back to work post-operation, his employer claimed they discussed the tavern’s sale and the restructuring which was to result from it.

The employee claimed he did not know he had been made redundant until the tavern’s new owner told him that “because of the restructuring he had no job to return to”. He also claimed he had been unable to contact his employer to discuss the situation, and that he had always said to his employer that he would be returning to work as soon as he had clearance from his specialist.

However, the employer claimed he took the employee’s comments during the restructuring conversation as a verbal resignation. He also claimed the employee had not signed an employment agreement, despite being asked to several times; the employee claimed he had signed an earlier employment agreement.

The Authority said that, in a situation where an employee’s position might be disestablished, the employer is obliged to comprehensively consult with that employee. It determined the employer had not genuinely done this and that, if he had, the employee would have been in no doubt that his employment was coming to an end.

Although the authority found the redundancy was genuine, and brought about by the sale of the business, the employee’s dismissal was unjustified as his employer had failed to comply with his own terms of employment and had also failed to follow the correct procedures. Furthermore, it found the employee had not resigned in the restructuring conversation.

The employee was not entitled to redundancy compensation on the basis of the employment agreement. However, the employee was awarded $2136 in remuneration, and a further $4000 compensation for hurt and humiliation.

Crawford v M Torok Holdings Ltd—ERA, Auckland, March 2007

Natural justice was not extended to an employee dismissed under suspicion of theft, according to an Employment Relations Authority determination on a claim of unjustified dismissal.

The employee had been working for the company as a hairdresser for several years and was entrusted with the keys to the salon she worked in. On the day of her dismissal a company director arrived to speak to her as she was closing the salon. The director said she was suspected of theft and that he had video footage which supported the accusation. He refused to show the employee the footage, demanded the salon keys back off her and, when she asked if she was being fired, said she was.

While the employee interpreted the situation as one of dismissal, the company claimed she had not been dismissed and simply did not return to the salon after the incident. The company also claimed she had not been an employee at all, but a contractor.

After establishing the employee was not a contractor but an employee, the Authority found she had been dismissed and that the dismissal was not justifiable. In its determination, the authority said the employee had been denied the chance to defend herself, and had not been offered any of the minimum requirements of procedural fairness. It said a fair and reasonable employer would not have behaved in such a way.

The Authority also found there was no blameworthy conduct on the part of the employee that would have constituted contributory fault. The employee was awarded $5025.01 as reimbursement for lost wages, and a further $5000 in compensation.

Stevens v Unibag Packaging Ltd—ERA, Wellington, March 2007

Youthful inexperience contributed to the Employment Relations Authority’s mixed determination in an employee’s claim of unjustified dismissal.
The teenage employee had a full-time, after school job with the company as a packer. Although the employee was paid as an adult packer, he became concerned that he was not paid enough. When the employee raised this with a union delegate, he also said his supervisor treated him unfairly. The employee, the delegate and the production manager then discussed the remuneration issue and came to an understanding.

However, on the employee’s return to work, his supervisor abused him. This upset him and, after his supervisor had left, he decided to go home. He did not return to work for two further days and he did not notify his employer of his absence.

Over this time, the site’s union organiser spoke to the production manager about the supervisor’s treatment of the employee. Although these allegations were relayed to the supervisor, she denied them, and the matter was dropped. After the employee’s return to work, the production manager approached him about his absence. Eventually, this resulted in the employee’s dismissal for breaching the company’s abandonment clause.

The Authority found that the employee had breached the abandonment clause in his contract as he did not have good cause to absent himself from work and had not provided notification of his absence to the company.

However, the Authority also found that the supervisor’s treatment of the employee had played a significant part in his decision to absent himself from work. It found the supervisor’s behaviour left the employee feeling unsafe at work and had unjustifiably disadvantaged the employee. Given the employee had been trying to help make ends meet for his family, and was still attending school full-time, the Authority awarded him $4000 compensation.

In the determination, the Authority also said that were it not for the contractual provision on abandonment, it would have reinstated the employee because his position was one worthy of sympathetic treatment. Furthermore, it said that should the company make a voluntary offer of reinstatement it would not order a remedy for unjustifiable disadvantage.

The Authority also suggested to the company that it should review its staff supervision policies and training to prevent similar situations occurring in the future.

Hardy v Scoopy’s Ice Cream Parlour (Whangarei)—ERA, Auckland, February 2007

The Employment Relations Authority upheld an ice cream shop employee’s complaints of unjustified constructive dismissal, and of disadvantage in her employment.

Shortly after starting part-time work at the shop, the employee became pregnant and began to suffer severe morning sickness. While she continued to go to work, it was agreed she would start slightly later in the mornings. She also had two periods of sick leave in quick succession.

Not long after the employee returned from sick leave, her employers decided to change the roster to better “suit all staff”. The employee agreed to have Saturdays off, and also that, at a later date, her hours would be further reduced. However, her employers removed her from all weekend work, and reduced her hours from 20 to 12 per week.

Although the employers claimed these changes had been agreed, the employee disputed that claim. She complained to her employers and also approached her union for assistance. The employment relationship broke down further when the employee received a letter of suspension due to her “less than satisfactory” performance.

The employers tried to avoid dealing with the employee’s union and attempts at arranging a meeting failed. Eventually, the employee did not report for work again and her employment was terminated.

Several disadvantage grievances were claimed by the employee. These were the reduction in her hours of work which she said she did not agree to; her suspension without pay which she said she was not warned of; and an unjustified warning.

The Authority found the specious disciplinary allegations, the unjustified warning, and the unjustified and indefinite suspension without pay constituted repudiatory conduct which amounted to a constructive dismissal. It also found the suspension and the warning were both part of a profoundly flawed disciplinary procedure.
The employee was awarded $3740.52 in remuneration, and a further $5000 compensation for injury to her feelings.

Air New Zealand Ltd v David McAlister—Court of Appeal of New Zealand, April 2007

The Court of Appeal granted Air New Zealand leave to appeal an Employment Court decision which found the airline had discriminated against one of their pilots because of his age.

Air New Zealand had employed the pilot as a captain for many years. In this role, the pilot flew a lot of long haul flights, many of which crossed North America. Various international regulations, which apply to North American and French territories, prohibit pilots aged 60 and up from acting as captain. For this reason, when the pilot turned 60 Air New Zealand demoted him.

The pilot complained of age discrimination and the case went straight to the Employment Court. At that court, Judge Shaw found the airline had discriminated against the pilot because of his age, and that this was a breach of s104(1)(b) of the Employment Relations Act.

However, Air New Zealand disagreed with Judge Shaw’s interpretation of s104, and applied for leave to appeal six questions of law. The Court of Appeal granted the airline the right to do so under urgency, as they raised questions of general or public importance.

—Selected and written by Miriam Bell

Previous Employment Case Notes

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