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Drawing the wrong conclusion
Neill v Air Nelson Ltd—Employment Relations Authority, Christchurch, July 2007
Personal grievance—successful: An airline employee’s complaint of disadvantage in his employment, due to the unjustifiable action of his supervisor, was upheld by the Employment Relations Authority.
Under the Civil Aviation Act 1991, certain airline employees have to hold a Class 1 medical certificate. If such an employee does not have the relevant certificate, an airline can suspend the person without pay.
In late 2005, the employee’s supervisor came to believe the employee was under stress. During an ‘informal meeting’ the supervisor suggested the employee visit his doctor and take “a couple of weeks off”, which the employee agreed to.
While the employee was on leave, the supervisor discussed the situation with the Air New Zealand medical officer who recommended a stand-down period of one month. He advised the employee of this and told him he had to obtain a new Class 1 certificate before returning to work.
The employee said he was “totally sandbagged” by his supervisor’s actions—particularly the fact his return to work was now conditional on securing a new Class 1 certificate. He also said his supervisor told his doctor he was receiving counselling for depression, and advised the Civil Aviation Authority (CAA) that he had been stood down and was receiving ‘psychiatric counselling’.
The employee said neither of these claims was true, but the end-result was that the CAA suspended, and then withdrew, his Class 1 certificate.
Although the CAA later reinstated the employee’s certificate, the employee said he had been disadvantaged because, should he seek employment at another airline, he has to disclose the withdrawal of the certificate.
The supervisor, meanwhile, maintained he had received information that the employee was receiving counselling for depression or a stress-related condition.
The Authority said there was no doubt the employee’s supervisor had serious responsibilities under CAA rules, and also that it was good the supervisor was diligent in the exercise of his duties. However, the Authority also said the supervisor had erroneously linked a number of pieces of information, and had come to an incorrect conclusion about the employee’s health.
While the Authority accepted the supervisor genuinely believed he was complying with the statutory regime, it found that his misconceptions—and the resulting actions—were unjustified and had disadvantaged the employee. The Authority upheld the employee’s personal grievance, and awarded him $5000 compensation.
Round peg in a square hole
Hollands v Jam Marketing Pty Ltd—Employment Relations Authority, Auckland, July 2007
Unjustified dismissal claim—upheld: Firing an employee because his “face did not fit” and he was a “round peg in a square hole” has cost a company $11,000, after the Employment Relations Authority upheld the employee’s complaint of unjustified dismissal.
The man was employed to sell timeshare properties on a salary plus commission basis. After working for the company for two months, he called in sick one day. When he returned to work the next day, he was taken aside by his employer and told that he was being let go. The employer told him that he was not doing anything wrong, but that he just did not fit the mould and that he should collect his things and go—which he did while his employer stood over him.
The employee claimed he had been given no previous indication that his employment was at risk. In fact, he had been assured he was doing well. He also said the whole process took about five minutes and he was given no opportunity to comment. Despite being given the opportunity to respond by the Authority, the company provided no evidence to contest the employee’s claims.
As a result, the Authority determined the claim of unjustified dismissal on the employee’s uncontested evidence. Based on that evidence, it found the decision to let the employee go was predetermined, the dismissal was unjustified, and the employee had a personal grievance.
The Authority awarded the employee $8000 for humiliation and distress, and also ordered the company to pay a $3000 penalty for failing to provide an employment agreement.
Collective approach
Terry Young Ltd (Yunca Heating & Gas) v EPMU—Employment Court, Christchurch, July 2007
Union question of law—right of access collective: The Employment Court found in favour of the union on the question of whether or not the law limits union officials exercising their right of access to a workplace to discussions with individual employees.
An earlier Employment Relations Authority decision on the matter concluded that a union’s right of access encompasses both individual and collective discussions. However, the company argued that a proper interpretation of section 20 of the Employment Relations Act 2000 restricted union discussions to a single individual employee at any one time.
Judge Colgan said that one of the principal thrusts of the ERA is for collectivism, which means employees working with unions for the mutual betterment of their terms and conditions of employment. He found that, while unions can and do represent individual members on individual issues, their principal activities are collective, and that union access to workplaces under s20 is generally expressed to be for purposes that are collective rather than individual.
The judge found the Authority had concluded correctly that discussions with employees undertaken by union officials entering workplaces under s20 are not confined to discussions with single employees individually, but include discussions with employees collectively. He dismissed the company’s challenge and, because he considered it a test case, made no order for costs on the challenge.
Breach of trust
Sefo v Sealord Shellfish Ltd—Employment Relations Authority, Christchurch, July 2007
Unjustified dismissal claim—upheld: Behaviour which breached the trust of her employer meant an employee’s bid for reinstatement was declined by the Employment Relations Authority, despite the fact it upheld her claim of unjustified dismissal.
The employee had worked at the company’s processing plant for 13 years before her dismissal. When dismissed, she was working as a mussel opener at the plant. One day, the product belt she was working on malfunctioned. At this point, she left her position and made several comments to fellow workers on the belt.
The next day her supervisor received two written complaints about the employee, both of which alleged she had encouraged her fellow workers to ‘cheat’, as the checker could not tell who opened any of the mussels.
Although the employee denied using the words “go for it”, which had been attributed to her in one of the complaints, she was suspended pending investigation. During the investigation, the complainant who said he heard the employee say “go for it” said he could not be 100 percent certain that those were the exact words spoken by the employee. However, the company said the employee’s behaviour constituted serious misconduct, and she was dismissed for a breach of trust and confidence.
The Authority found that the key witness had only been re-questioned after a decision had already been made, and that the company had relied on the subjective perception of that witness alone. For this reason, the Authority found the company’s actions in dismissing the employee fell short of those a fair and reasonable employer would have done in the circumstances.
However, the Authority also found the employee’s observed behaviour, during the incident, had contributed to her dismissal and had breached the trust of her employer. This meant her application for reinstatement was declined by the Authority, although she was awarded four months loss of earnings. The employee was also awarded $15,000 compensation for humiliation and injury to feelings, but this was reduced to $12,000 because of her contributory behaviour.
Please sir, can I have some more
Wyatt v Simpson Grierson—Employment Court, Auckland, July 2007
Personal grievance—unsuccessful: A solicitor’s personal grievance claim that, during his employment at his former firm, he was underpaid was unsuccessful in the Employment Court—but allowed the judge to make a useful legal interpretation in the decision.
The employee worked for the firm for four years before he was dismissed on the grounds of redundancy. He has since taken a two-complaint personal grievance to the Employment Relations Authority. The complaint the court considered is that he was underpaid when at the firm and, specifically, that the salary reviews conducted by the firm in 1999, 2000 and 2001 were carried out unfairly because he was paid less than comparable colleagues.
However, the firm said there was no substance to his claims, and that his salary was always fixed fairly and in accordance with the terms of his employment. The firm also claimed the employee was not entitled to pursue his concerns as personal grievances because they had not been submitted to the firm within 90 days of each of his salary reviews.
Judge Couch first determined that the Employment Relations Act 2000, as opposed to the Employment Contracts Act 1991, was the correct legislation under which to pursue the man’s complaint. He then moved on to address the firm’s claims relating to the 90 day submission period for personal grievances.
The firm had submitted that the 90 day period began when the employee was notified of the result of his 1999 salary review. However, the employee argued that the 90 day period should be considered to have started when he became aware of the alleged discrepancies between his salary and those of his colleagues.
Judge Couch found that the 90 day period will usually begin when the action alleged to amount to a personal grievance occurs but, if the circumstances in which that action was taken are an essential element of the personal grievance, it will begin when the employee becomes fully aware of the surrounding circumstances.
Although the judge found the employee’s situation was one in which an alternative starting point for the 90 day period applied, the judge found that he had still not raised his personal grievance during the applicable 90 day period. The judge also found the firm had not consented to a late submission of the employee’s personal grievance claims, and that the employee’s challenge was unsuccessful.
The judge directed the Employment Relations Authority to proceed with its investigation into the employee’s other personal grievance complaint, and awarded the firm costs.
—Selected and written by Miriam Bell
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