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Employment case notes


Fight responsibility?
Martin v Cook & Galloway Engineers Ltd—
Employment Relation Authority, Auckland, October 2007

Unjustified dismissal claim—upheld: The Employment Relations Authority agreed with an employee who said he was unjustifiably dismissed from his job after being involved in a fight with a co-worker.

Both employees involved in the fight had long had a difficult relationship, which included regular complaints of harassment from both parties. On the day in question, the complainant’s co-worker accused the complainant of falsifying his timesheets (which was untrue), and then entered the complainant’s workspace, minus his safety gear, and threatened him with a steel bar. Words were exchanged, and the complainant used the tool in his hand to grind sparks in the co-worker’s direction. The co-worker then assaulted the complainant with the bar, and caused an injury to his ear which required a hospital visit and stitches.

After the incident the complainant went on leave. When he was asked to attend a meeting about the fight, he thought it was simply part of an investigation into the incident. However, the result of the investigation was that both men were dismissed from their jobs as it was decided they were equally to blame for the fight. While the complainant acknowledged he had breached his health and safety obligations by grinding sparks at his co-worker, he said his co-worker was to blame for this particular incident.

The Authority found in favour of the complainant. It said it was the co-worker who had provoked the fight, after physically threatening him the week before as well as making false accusations about him earlier that day. It said the complainant’s employer had done nothing to ensure his safety at work, despite being aware of the serious situation which had developed and, particularly, the co-worker’s earlier threats. The Authority also found that the investigation process had not been fair or reasonable.

For these reasons, the Authority said the complainant had been unjustifiably dismissed. He was awarded $3962.90 for lost wages and $2700 for compensation. The sums awarded were originally higher, but the Authority deducted 10 percent for contributing to the situation.

Rough justice
Affco New Zealand Ltd v Nepia & Morunga—
Employment Court, Wellington, September 2007

Appeal against unjustified dismissal decision—unsuccessful: Failure to provide two employees accused of theft with specific details of the allegations against them proved fatal to the company’s case, ruled the Employment Court.

The company had employed a private investigator to look into substantial stock losses from the freezers at one of its plants. While looking into the situation the investigator received confidential information from a number of employees that several staff members were involved in the regular theft of meat.

These staff members included the two defendants in this case. In the course of the investigation, they were interviewed about the theft. Both of them denied stealing anything from the plant, and one of them said that if he had any information about the thefts he would give it to the investigator. But, based on information from the informants, the investigator formed the opinion that the two defendants were the principal offenders in the thefts. Both were suspended, and a disciplinary process was initiated.

After their original interview, in which they denied being involved with the thefts, both defendants refused to make any further comments. This in itself was considered incriminatory by the company. However, neither the defendants nor their union representative were given details about the allegations that had been levelled at them. Furthermore, although the defendants did not request further information, their union representative did but was not given any.

Eventually, both defendants were dismissed and filed personal grievances with the Employment Relations Authority, which found they had been unjustifiably dismissed. The company appealed this decision. It said that its actions in dismissing the defendants were what a fair and reasonable employer would have done under the circumstances. It also said that it would not be practicable to reinstate Mr Nepia, as ordered by the Authority.

Judge Shaw found the process by which the decision to dismiss the two employees was made was not fair in so many respects that it could not be substantively justified. She said the disciplinary procedure adopted “amounted to rough summary justice”, and that no fair and reasonable employer would have acted in such a way. She was particularly critical of the fact that the defendants were not provided with details of the accusations against them, and that the employer had not followed its own processes, which had been agreed on with the union.

The judge also said that while the defendants’ first interview(s) with the investigator were considered informal by him, they believed their initial denial had been an important part of their response to the allegations. They felt they had denied the allegations and that without further evidence they did not want to comment.

As a result, judge Shaw found the dismissal of the defendants was unjustified. She upheld the awards of $8000 each for humiliation and $9021.88 each for lost wages, which were ordered by the Authority, and ordered the reinstatement of Mr Nepia.

Workplace stress
Williams v Napier Motors Ltd t/a Dunedin City Ford—Employment Relations Authority, Christchurch, September 2007
Personal grievance claim—upheld: Exposure to pornography in the workplace led the Employment Relations Authority to uphold an employee’s complaint that the company had not provided her with a safe workplace.

The employee said that, on two occasions, she observed a colleague viewing pornographic images. After the first incident, she told her manager and then laid a complaint. On this occasion, the matter was dealt with and the employee received a written apology. Just a few days later, the employee observed her colleague trying to show a pornographic image to another colleague. On this occasion, the employee complained to her manager but did not take the matter any further.

However, the employee claimed that after these two incidents she was isolated and marginalised by her work colleagues, and that the stress of all this led to the decline of her health and an inability to work. This, in turn, led to her dismissal.

The employee provided the Authority with a list of incidents which she said proved that she had been marginalised. The list included complaints about her commission(s), being singled-out in a disciplinary meeting to review her work performance, and allegations of bullying and sexual harassment by various colleagues.

The company denied all of the employee’s claims and said that, at all times, the employee was treated fairly and properly—although it did concede that the disciplinary meeting was not conducted as fairly as it could have been.

The Authority found that the company had breached its obligation to provide the employee with a safe workplace free of offensive pornographic images. It also found that facts supported her contention that there was a culture in the workplace which was supportive of pornographic material and antithetical to her enthusiasm for stamping it out.

However, the Authority did not find any substance in any of the employee’s other complaints. Instead it said the employee had not satisfied the Authority that the behaviour of the employee’s colleagues was sufficient to isolate and marginalise her, and nor did it accept that the employer behaved improperly in investigated the alleged bullying and sexual harassment.

Furthermore, the Authority commented unfavourably on the employee’s own behaviour in later seeking out pornographic images on her colleague’s computer, and in his briefcase, in an effort to better support her complaints.

The Authority said the employee did have a personal grievance—in relation to the incidents involving pornographic material. She was awarded $7500 compensation, as well as $10,000 for three months’ lost salary.

Duty of fidelity
McMillen v Pilates Plus Ltd—Employment Relations Authority, Christchurch, September 2007
Unjustified dismissal claim—upheld: An employee’s claim of unjustified dismissal—because of allegations that he breached his employment agreement—was upheld by the Employment Relations Authority.

The employee had worked as a pilates instructor, for about a year, for a business which was then sold as a going concern to another company. His new employers then employed the man on his existing terms and conditions, which included a written employment agreement. After reading a newspaper article about a gym business run by the employee’s wife, the new employers hired a private investigator to conduct some surveillance on the wife’s gym.

On receiving the investigator’s report, the employers decided the man was playing an active role in the gym, and that the gym was competing with their pilates studio. They also claimed they had found a file, on the computer used by the employee, which backed up their belief.

The employee denied this was the case. He said he had, on one occasion, assisted his wife with some gym training and that, generally, he supported his wife in her business. He also said that the computer file was over a year old and did not mean what his new employers’ claimed it did; that his wife’s gym did not offer pilates and that it was not in competition with his employers’ pilates studio.

Furthermore, when contacted, the employee’s former employer said that he had been aware of the gym business and did not think that it created any conflict with the man’s work for the pilates studio.

Despite these explanations, the employee was dismissed by his new employers because they believed he had breached both the express and implied terms of his employment agreement through his connection to the gym business.

However, the Authority found that no reasonable employer would, on the available evidence, have formed the view that the employee’s involvement in his wife’s business adversely affected his work for the pilates studio. It also said that, since the employee had declared his connection to the gym to his previous employer, there had been no changes to the gym to bring it into competition with the pilates studio.

It said that these findings meant the employee had not breached either the express or the implied terms of his employment agreement, that there was no basis for his dismissal, and that the employee had a genuine personal grievance.

He was awarded $5000 compensation, but nothing for lost remuneration as he had established his own pilates business, after his dismissal, and now counted some of his employers’ clients as his own.

Misuse of company car
Macdonald v Brake & Transmission NZ Ltd—Employment Relations Authority, Auckland, October 2007
Unjustified dismissal claim—unsuccessful: Multiple complaints about the driving of a sales representative led to his dismissal, which the Employment Relations Authority found was justified.

While the man was employed by the company he had the use of a company car. Throughout this time, his manager received a number of complaints, including one from the police, about the employee’s driving of the car. The company issued several warnings to the man and, eventually, he was asked to attend a disciplinary meeting.

The employee claimed his driving was blameless, but he was issued with a final warning. Several months later, his manager received another complaint about the employee’s driving. The manager conducted an investigation into the complaint, which led to the employee being dismissed.

However, the employee complained to the Authority. He said there was nothing wrong with his driving, that the final complaint had been a malicious one, and that his manager was biased against him because he did not like him.

The Authority found in favour of the company. It said the entire disciplinary process, including the investigation, had been fair and reasonable, and that the employee had been given opportunities to address the issue. It also said he had been a liked and valued employee, and that his concerns did not have reasonable basis.
Therefore, his dismissal was justified. Costs were reserved.

—Selected and written by Miriam Bell




Previous Employment Case Notes

Issue 162
Issue 161
Issue 160
Issue 159
Issue 158
Issue 157
Issue 156
Issue 155
Issue 154
Issue 153
Issue 152
Issue 151
Issue 150
Issue 149
Issue 148
Issue 147
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Issue 144
Issue 143
Issue 142
Issue 141
Issue 140
Issue 139
Issue 138
Issue 137
Issue 136
Issue 135
Issue 134
Issue 133
Issue 132
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Issue 129
Issue 128
Issue 127
Issue 126
Issue 125
Issue 124
Issue 123
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Issue 121

Issue 120
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Issue 117
Issue 116
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Issue 114
Issue 113
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Issue 111
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