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Lewis & Edwards v Talleys Fisheries Ltd—High Court, Wellington, June 2007
Gender discrimination claim—upheld: Gender discrimination in the allotment of jobs was practised at South Island fish processing plant Talleys Fisheries Ltd, according to a High Court decision.
A seasonal employee claimed she could not get a job filleting fish at the plant because she was a woman. There were jobs filleting fish or trimming fish, but she said the filleting jobs, which paid more, were allocated to men while the trimming jobs were allocated to women.
Although the employee had extensive trimming experience she was not able to apply for a filleting job, whereas her partner—who did not have any experience—applied for and got a filleting job. She also claimed women were not offered the chance to move into filleting jobs, nor were they encouraged to apply for them. This equated to gender discrimination, she said.
The company’s CEO denied the allegation. He admitted that, with few exceptions, men at the plant were employed to fillet fish and women were employed to trim them. However, on behalf of the company, he argued it was uncommon for women to be filleters because of the heavy lifting component of the job. He claimed that if a woman applied to be a fish filleter her application would be considered in the same way a man’s would be.
Initially, the woman had complained to the Human Rights Commission which took the case to the Human Rights Review Tribunal, which upheld her complaint of unlawful gender discrimination. However, the company appealed that decision.
High Court judge Simon France, and two members of the Human Rights Review Tribunal, considered the appeal and found in favour of the employee. They found the jobs of trimmer and filleter were “substantially the same”, and that the company had discriminated against the employee by paying her less money than a man, after allocating her to the lesser paying job because she was a woman.
Justice France said: “It should not be thought that Talleys are being told what to pay, or how to value their jobs. It can pay a filleter more than a trimmer if it wants to. What it cannot do is allocate those jobs on a prohibited basis such as the sex of the applicant.”
The company agreed it would pay the employee compensation for lost income and injury to feelings, that it would undertake human rights training, and that it would implement an equal employment opportunity policy. However, the company’s CEO also told the Herald on Sunday the decision was “pathetic” and “a joke”.
The decision also upheld a related complaint of victimisation by the employee’s partner. He claimed he was refused a job at the plant after his partner complained to the Human Rights Commission.
• Employment Today reported on the original Human Rights Review Tribunal decision in issue 105.
Kessell v Harris Transport Ltd—ERA, Wellington, June 2007
Unjustified dismissal claim—upheld: An employee’s claim of unjustified dismissal was upheld by the Employment Relations Authority, although it reduced the remedies owed to him for contributory conduct.
The employee’s job involved scheduling the company’s jobs and organising staff to run the required operations. However, the employee was a diabetic and often neglected to take proper care of his condition. This led to frequent forgetfulness and “muddling up” of work on the part of the employee. On occasion, this behaviour had an impact on the company’s business.
Unfortunately, he neglected to tell his employer about his medical condition. His employer grew increasingly frustrated and annoyed with the employee. Over several months, he sent the employee three written warnings about his behaviour. After another such incident, the employer lost his temper and “tore strips” off the employee for repeatedly failing to follow instructions. The next morning he sent an email to the employee which informed him of his immediate dismissal.
The Authority found that, while the issue was the employee’s poor performance, the test for such a dismissal required an element of deliberateness by an employee. However, in this case, the problem was with the employee’s memory and not any deliberate failure to follow instructions.
Furthermore, the Authority found the whole disciplinary and dismissal procedure adopted by the employer was fundamentally flawed because of the employee’s minimal involvement. The employee was not given substantive reasons for his warnings and nor was he given information on how to improve his performance. The employee was also not provided with a fair opportunity to address his employer’s concerns. Had he been given that opportunity, he may have disclosed his medical condition.
The Authority found the employer had not acted how a fair and reasonable employer would have in the circumstances, and that the employee had been unjustifiably dismissed. However, it ordered the employee’s remedies be reduced because of his non-disclosure of his medical condition. The employee was awarded $8000 in compensation and $6,500 in lost remuneration.
Tauhore v Farmers Trading Company—ERA, Wellington, May 2007
Unjustified dismissal claim—dismissed: The Employment Relations Authority found against an employee’s claim of unjustified dismissal, despite the District Court’s acquittal of her on a criminal charge related to the same events.
Suspicions of “betrayal” had led the employee to visit one of her co-workers and assault her. She later sent the co-worker a series of threatening and abusive text messages. The co-worker made a formal complaint to both the company management and the police.
Although the attack was not related to a work issue, but rather a romantic one, the fact it occurred when the employee was supposed to be at work was considered by management to constitute a breach of the company’s Work Rules. The employee was sent a letter, by management, which expressed serious concerns about her behaviour. Shortly afterwards, the management embarked on an investigation and disciplinary process.
The employee denied assaulting her co-worker, claimed she had not sent all the text messages, and said she had not visited her co-worker in work time but during her lunch break. She also claimed the text messages she admitted sending proved she had not attacked her co-worker. However, the company submitted evidence from the co-worker’s mother which showed the employee’s claim about the time of her visit was not accurate. The company said the employee had seriously breached its work rules and that this was a breach of trust.
The Authority preferred the company’s evidence and concluded the employee had assaulted her co-worker, and had also sent her the text messages. It found the reasoning of the company had been that of a fair and reasonable employer, that there was no predetermination or bias on the part of management, and that management had followed the company’s disciplinary guidelines.
While the District Court had dismissed the criminal charge, largely due to inconsistencies in the co-worker’s evidence, the Authority said it had a different issue, which did not require the criminal standard of proof. On that issue, the authority found the company had acted fairly and the employee’s dismissal was justified.
X v Auckland District Health Board—Employment Court, Auckland, February 2007
Personal grievance—upheld: Procedural errors in the headline-grabbing case of a senior physician, who was dismissed from Auckland City hospital for serious misconduct involving electronic material, were such that the Employment Court ordered the doctor be reinstated.
An ADHB employee since 1977, the doctor has a prestigious international reputation. At the time of his dismissal, he held the dual positions of director of the hospital’s relevant specialist unit and director of research (in this speciality) at the hospital. In both these roles, he received and sent large numbers of emails.
All these emails were filed securely in the hospital’s IT system, which meant the emails were accessible to the doctor and his personal staff—but were inaccessible to anybody else. Except for emails requiring professional confidentiality, his support staff had access to his work-related emails.
Chief judge Graeme Colgan emphasised it was important to note this was not a case about internet access. Instead, the electronic material concerned was: 1) Electronic material attached to emails sent to the doctor by others—some of which he forwarded on, and 2) Several photos taken by the doctor which he then attempted to send using the hospital’s email system. While the doctor thought he had deleted this material from the hospital’s systems, in fact he had not. Judge Colgan said the case illustrated that nothing is ever eliminated from electronic systems, rather it tends to be stored in a less easily accessible fashion.
In late 2004, for reasons the judge said “remain largely inexplicable”, the doctor took several photos of his exposed genitalia. He then tried to email the photos, as an attachment, to a female friend via the hospital’s system. The email—with the photos—was archived in the hospital system. Shortly afterwards, the doctor was sent an electronic calendar featuring sexually provocative photos of older women. The doctor originally deleted the calendar, but retrieved it and sent it to a colleague.
Although the doctor deleted all this material, some of his support staff came across it in the system. One of his staff then reported the existence of the material to the board.
The initial investigation quickly escalated into a high-level inquiry headed by the board’s deputy chief executive. Several meetings with senior management, during which the doctor admitted and apologised for his behaviour, followed and he was left thinking it was not a serious matter.
However, in March 2005, he received a letter from the board which said his actions were “of the utmost seriousness”, and also alleged he had bullied his support staff to find out who had reported him. After another meeting, the doctor was told his conduct had been unacceptable and had undermined the confidence of the board. He was then dismissed (although the Employment Relations Authority soon ordered his interim reinstatement).
In a lengthy decision, which avoided “value judgments”, Judge Colgan found that, while not all of the doctor’s complaints about his treatment amounted to unjustified disadvantage, others did. Although there was (admitted) misconduct by the doctor, he had been subjected to several breaches of good faith, lack of disclosure, and breach of contract/policy by the board. “I have decided that the defendant’s inquiry and decision making process was so unfair and in breach of statute, contract and the ADHB’s own policies, that no fair and reasonable employer would have so conducted itself in all the relevant circumstances at that time. By each of the separate tests required to be considered by the court, the plaintiff’s dismissal was unjustified.”
The doctor asked for permanent reinstatement to his employment, compensation for some financial losses, and substantial distress compensation. However, the judge said the doctor’s actions were “adolescent and frankly stupid” and had contributed to his dismissal. For this reason, Judge Colgan ordered the doctor be permanently reinstated, but awarded him no other remedies.
—Selected and written by Miriam Bell |
