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Lack of employment agreement
Williams v Camira Furniture Ltd—Employment Relations Authority, Auckland, August 2007
Unjustified dismissal claim—upheld: Failure to provide a written employment agreement and to follow the correct dismissal procedure resulted in the Employment Relations Authority upholding an employee’s claim of unjustified dismissal.
The employee was appointed to the position of salesperson for the company in April 2005. Unfortunately, his employer was unsatisfied with his performance in the job, as well as being unhappy with the amount of money the employee had cost the company by downloading music from the internet. As a result, he decided to dismiss the employee after four months.
Although he had conducted two disciplinary meetings with the employee, during the four month period, he had not made it clear that the employee’s job was at stake—because he thought it was obvious from the nature of the meetings. However, the employee said he thought the meetings were part of the training process.
The employee had also not been provided with a written employment agreement, and the two men disagreed on whether or not the employee had been told he was employed on a six-month trial basis.
The Authority found that the lack of a written employment agreement meant the employer could not rely on the existence of a trial period in relation to the termination of the employee’s employment.
Furthermore, it found that the employer’s failure to provide the employee with clear and specific warnings that his job was at risk rendered the dismissal procedurally unfair. The employer was ordered to pay the employee $3500 compensation for hurt and humiliation.
However, the Authority also found that the employee’s conduct had contributed to his dismissal and that he owed the employer $4635 for his internet usage. Costs were reserved.
Breach of duty?
Buck v Gourmet Foods Ltd—Employment Relations Authority, Auckland, August 2007
Unjustified constructive dismissal claim—unsuccessful: The Employment Relations Authority dismissed an employee’s claim that a significant breach of duty, on the part of the company which employed him, amounted to an unjustified constructive dismissal.
After working for the company as their area sales manager for just over a year, the employee suddenly handed in his notice without providing a reason. He later claimed that a number of embarrassing situations with one of the company’s products, as well as a series of customer complaints, had led to his resignation.
However, the company said it had acknowledged the product is question was sub-standard and had withdrawn it from the market. It also said that it had acknowledged, and responded to, a number of issues the employee had raised. For these reasons, it had come as a surprise when the employee resigned.
The Authority found the company had provided the employee with the necessary information whenever it became available, and had responded to the issues raised by the employee. Furthermore it found the employee had offered no evidence of the customer complaints that formed a significant part of his claim.
The Authority, therefore, found that there had been no breach of any duty owed to the employee by the company. It said the employee had not been unjustifiably constructively dismissed, and made no formal orders.
Unapproved extended leave
Ashton v PMP Print Ltd—Employment Relations Authority, Christchurch, August 2007
Unjustified dismissal remedies claim—unsuccessful: Taking five weeks unapproved leave constituted serious misconduct worthy of dismissal, according to the Employment Relations Authority, who declined the employee-in-question’s claim of unjustified dismissal.
The employee requested five weeks leave to attend the 2006 Football World Cup. He claimed his manager initially said that he could not see the request being a problem. When he eventually made a formal leave request, the request was denied by the company—which cited engineering commitments as a reason. The employee was instead offered 15 days leave.
By this time, the employee had booked his trip (including his flights) anyway. When his leave request was turned down, the employee, with the help of his union organiser, challenged that decision. The company continued to offer 15 days leave, as opposed to the five weeks he had requested, and warned the employee that he was in danger of breaching his employment agreement—which could lead to dismissal.
The employee went ahead with the trip and, on his return, he was dismissed for serious misconduct. He claimed that he had treated unfairly as “some sort of corrupt punishment or as a continuing personal vendetta” because of his role as a union delegate in a workplace strike in 2004.
However, the company said its managers took reasonable steps to accommodate the employee’s leave request, but were entitled to dismiss him for serious misconduct after he went away for an extended period of time despite his leave request being refused.
The Authority found the company had never unequivocally committed itself to the employee taking extended leave, and had tried to accommodate his leave request. Furthermore, it found that the employee’s “individual resolution to take the leave he wanted when he wanted, regardless of his employer’s refusal on clear and stated grounds” was at the heart of the problem.
The Authority said the employee’s actions were a “wilful and deliberate act of disobedience” that any fair and reasonable employer would consider serious misconduct which would fatally undermine its trust and confidence in that worker. It found the company’s actions in refusing the leave and dismissing the employee were justified.
The employee’s personal grievance application was dismissed, and the parties were ordered to resolve any issue of costs between themselves.
Health & safety sentence increase
Department of Labour v Fletcher Concrete & Infrastructure Ltd—High Court, Whangarei, August 2007
Health & safety sentence appeal —upheld: Disagreement over a district court judge’s sentence led to a Department of Labour appeal to the high court, which upheld the appeal and increased the original sentence.
The sentence in question involved an accident at a quarry which resulted in significant injuries to an employee. The employee had driven a large truck, with a load of limestone, to the edge of a face in the quarry over which the truck’s load was to be tipped.
When he was reversing the truck into position to dump the load, the truck’s rear wheels began to sink and give way. This caused the truck to fall down the face of the quarry upside down, with the driver’s cab being crushed under the weight of the laden truck which rested on top of it.
Fortunately, the employee managed to jump out and, although injured, survived. If he had not managed to do so, his survival would have been unlikely.
The company accepted that it had an obligation to manage health and safety issues at the quarry. Although the company employed a quarry manager, who had checked the quarry face in question a week earlier, the quarry face had only been checked by the employee on the day of the accident. For this reason, the company pleaded guilty to breaching the Health & Safety in Employment Act.
In the district court decision, the judge fined the company $4000 and ordered the company to pay $6,000 reparation. However, the Department of Labour said that an order totalling $10,000 was “inordinately lenient”.
While the department acknowledged there were several mitigating factors, including the company’s guilty plea and the taking of steps to prevent a reoccurrence, it argued the sentence did not accurately reflect the company’s degree of culpability.
Furthermore, it pointed out that the company had two previous convictions in recent years, that it had an obligation to protect both employees and the public, and that such sentences should also function as a deterrence to both the offender and other employers.
Judge Gendall said the department’s arguments had satisfied him that the fine was inadequate and failed to reflect the principles required for sentencing under this particular act. He said the company was a large employer of substantial means, which pleaded guilty to the offence, and had previous convictions. He also said that in this particular area, especially where large companies infringe, penalties must bite and must not be at a “licence fee” level.
The judge said the department’s appeal was successful and quashed the fine that was originally imposed. He then fined the company $16,000 and said the order for reparation of $6000 remained.
Unacceptable treatment
Hand v Hayson—Employment Relations Authority, Auckland, August 2007
Constructive dismissal remedies claim—upheld: A physical assault on a young employee led the Employment Relations Authority to uphold that employee’s complaint of constructive dismissal.
The employee worked as a cleaner for the company for several months in 2006. He claimed his supervisor routinely swore at, and was abusive to, the staff. On the night before he resigned, his supervisor physically assaulted him and then threatened to kill him. After the assault, the employee left his workplace, and then reported the incident to his employer.
He handed in his resignation the next day. His employer acknowledged the supervisor was a “dickhead”, but did not try to prevent the resignation and did not suggest anything to address the incident. The employee subsequently lodged a personal grievance and, since then, he claims he has been threatened again by both the supervisor and his former employer.
The employee alleges the initial incident was an unjustifiable action which led him to resign and that, as a result of the follow-up threats, he has suffered “extreme stress and humiliation”. His former employer did not respond to the Authority’s requests for either a statement in response to the employee claims, or to the Authority’s summons to appear before it.
The Authority found the conduct of the supervisor amounted to a serious breach of the employer’s obligations to provide a safe workplace for employees. Furthermore, the fact the employer took no steps to ensure there was no further risk to the employee meant the employee’s resignation amounted to a constructive dismissal.
After saying the treatment received by the employee, who was only 18 at the time of the assault, was unacceptable, the Authority ordered the employer to pay him $10,500 for compensation and costs.
—Selected and written by Miriam Bell
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