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Paid parental leave?
Toroa v Department of Labour—Employment Relations Authority, Wellington, November 2007
Paid parental leave claim— unsuccessful: A public sector employee’s claim of eligibility for 14 weeks paid parental leave was dismissed by the Employment Relations Authority.
The woman had taken legal guardianship of a child to care for that child full-time, but the child was not available for adoption. She applied for parental leave from her employer, and was granted 52 weeks under a wider application of parental leave arrangements by agreement with her employer. While it was agreed that her position would be held open for her, and filled on a temporary basis while she was on leave, no other arrangements were made.
Section four of the Parental Leave and Employment Act 1987 (PLEPA) makes provision for more beneficial parental leave arrangements to apply. However, this is constrained by sections seven and eight of the PLEPA, which restrict entitlement for statutory parental leave to pregnancy and adoption. Under the PLEPA, guardianship is not deemed as one of the methods by which a child is taken into care for adoption, and legal guardianship is not covered under the act’s provision.
The woman acknowledged that she was not adopting the child, and she provided nothing to support the entitlement criteria of section 33 of the PLEPA.
Furthermore, under section 71 of the PLEPA, an employee is only entitled to a parental leave payment if they are an eligible employee when they take parental leave. While parental leave can include non-statutory parental leave, it is constrained by other sections of the act which apply to employees with a statutory entitlement. Under section 71, the provision of non-statutory parental leave is ignored when a statutory entitlement applies. Therefore guardianship is not covered by the act.
As a result, the Authority concluded that, under the present law, the woman was not entitled to paid parental leave because, in the circumstances, she did not meet the statutory eligibility for a statutory provision of paid parental leave under the PLEPA.
Assault allegations
D v M—Employment Relations Authority, Christchurch, November 2007
Unjustified dismissal claim—upheld: The Employment Relations Authority upheld a farm hand’s claim of unjustified dismissal, although it said the employer’s behaviour was understandable as it was triggered by his son’s allegations of sexual assault by the farm hand.
The farm hand was employed from early June 2005 until mid-September 2005. There was no written agreement, and the two parties disagreed over the details of the original agreement (particularly remuneration). While the employer claimed he had given several verbal warnings to the farm hand (including one about keeping his distance from his children), the farm hand said he was never issued with any warnings.
On the day the farm hand was dismissed, the employer’s son told his father that the farm hand had sexually molested him. After ringing the police and his lawyer for advice, he visited the farm hand’s sleep-out, told him of his son’s allegations and asked him to leave the property. The farm hand denied the allegations, but said he understood why he was being asked to leave the farm. He immediately left the farm with a cheque for one week’s wages.
The allegations were fully investigated by police, who found there was insufficient evidence to support a prosecution. However, other local people quickly became aware of the allegations, and the farm hand was subjected to verbal and physical abuse. He also received a threatening phone call from his former employer which led him to take out a trespass order against the employer.
Even though the police decided not to prosecute, the employer did nothing to address the remuneration issues left uncertain after the farm hand’s dismissal. The parties attempted mediation, but were unable to reach an agreement.
The Authority found the employer was understandably focused on his son’s allegations, but that he had failed to address the employment situation at all. There was no investigation into the events that led to the farm hand being dismissed, and there was no attempt by the employer to work out an exit and remuneration package for the farm hand—even after the police investigation concluded.
The Authority found the farm hand had been unjustifiably dismissed by his employer and, furthermore, that the farm hand did not contribute to the circumstances that gave rise to his dismissal. It also found that the farm hand had suffered considerable hurt and humiliation as a result of the allegations.
The employer was ordered to pay the farm hand $6571.52 in lost remuneration, $917.30 holiday pay, and $12,000 compensation for hurt and humiliation. The Authority said it was not able to enforce the farm hand’s request for a written apology, but it did issue a suppression order in regards to all identifying details of the case.
Deceptive masseuse
Francis v Avalon Business Ltd—Employment Relations Authority, Auckland, October 2007
Unjustified dismissal claim—unsuccessful: Attempted deception on the part of a massage parlour employee led the Employment Relations Authority to question her credibility, and dismiss her claims of unfair dismissal.
The woman had been employed to work at a massage business in Tauranga. However, the woman and her employee had very different stories about what she was actually employed to do. The woman herself claimed she had been employed as the madame, or manager, of the business, whereas the employer said the woman was originally employed as a masseuse.
After the employee had repeatedly told her employer that if she was to manage the business she could dramatically increase revenue and business, the employer allowed her to take on the position of manager. Although there was a brief period when the earnings of the business increased, they never increased to the amount promised by the woman.
In response, the employer discussed her concerns about the earnings with the woman. While the employee claimed she was abruptly dismissed at this point and, therefore, asked for her “unpaid wages”, the employer said the woman responded to the conversation in an unpleasant and aggressive fashion.
The woman told the employer that she may not come to work the next day, and later rang the employer and threatened her. The next day the woman did not turn up at work—and neither did any of the other employees, nor any clients. It later emerged the other employees and the clients had all received text messages informing them that the business had closed.
At the Authority’s investigation meeting, the woman claimed that she had never worked as a masseuse for the business under the name of ‘Zara’. Rather she claimed ‘Zara’ was someone else. However, the Authority found that the documentation provided proved otherwise. This attempted deception led the Authority to find that none of the rest of the woman’s evidence could be trusted.
The Authority concluded that the employee had not been dismissed from her employment at the massage parlour and that she had, in fact, abandoned her employment and taken steps that essentially destroyed her employer’s business. She had not been unjustifiably dismissed, and nor had she been deprived of any of her entitlements to wages.
The woman was ordered to pay her former employer $1500 plus $582 in expenses and disbursements.
Dodgy emails
Mackenzie v Ogilvy New Zealand Ltd t/a Advertising Works Ogilvy Ltd—Employment Relations Authority, Auckland, August 2007
Unjustified dismissal claim—upheld: Carelessness with emails led to the dismissal of an employee whose claim that his dismissal was unjustified was upheld by the Employment Relations Authority.
The employee, whose role involved overseeing one of the agency’s “cornerstone” accounts, had already received one written warning about his performance. He then accidentally copied a dismissive email about the account, which was intended for a colleague, to the account representative that he dealt with. After realising his mistake, he immediately apologised to the account representative, who accepted his apology because he thought it was a one-off mistake.
As his apology had been accepted, the employee did not inform his manager of the incident. Coincidentally, around the same time his manager emailed her staff to remind them to be careful with email correspondence—indicating the issue was an important one to the agency.
However, several months later, the employee again sent a dismissive email to the account representative. This time the email was intended for the account representative, although the employee later said the representative misinterpreted the wording of the email. Within minutes of the email being sent both the representative and her manager called the employee’s manager to tell her about both incidents and to ask for the employee to be taken off their account.
The employee’s manager met with senior management, and it was decided to dismiss the employee. The next day he was asked to attend a meeting at which he was given a letter saying that he was dismissed with immediate effect and laying out the reasons why.
Although the Authority accepted there was some discussion at the meeting, it found that the dismissal did not come close to meeting the accepted standards of a procedurally fair process. The agency did not even follow the process for disciplinary inquiries which was laid out in the employee’s employment agreement.
The Authority found the employee had been unjustifiably dismissed. However, because the employee was the “author of his own misfortune”, he was awarded just $1500.
Café troubles
Komene v Nisroc Ltd—Employment Relations Authority, Christchurch, November 2007
Unjustified dismissal claim— upheld: The Employment Relations Authority upheld a young chef’s claim that she had been unjustifiably dismissed for taking a sick day—even though she had informed her head chef.
After being employed for several months, the woman texted the head chef on Anzac Day to say she was ill and was taking the day off. She felt it was not appropriate for her to work around food when unwell. The head chef responded with a phone call acknowledging the situation.
Several hours later, the woman received a text message from her employer asking where she was, and indicating that she was dismissed with immediate effect for not bothering to turn up for work. A few days later, she received a letter from her employer which said her casual employment contract had been cancelled due to gross misconduct. It also claimed the incident was the third of its type.
The woman said her employer’s account of her sick day was untrue. She also said she had been employed as a permanent employee, not a casual employee, and that she had never failed to turn up at work before. She went to the Authority with a personal grievance due to unjustified dismissal.
Her employer failed to turn up to the Authority’s investigation meeting, although he did send some documentation. However, the Authority found the documentation was not relevant, and the employer’s account of the dismissal was completely untrue. The Authority also found the woman had been a permanent employee because she was able to present evidence to prove it.
The Authority concluded the woman had been unjustifiably dismissed and that her dismissal had not followed a proper process. The woman was awarded $2000 compensation for hurt and humiliation, as well as $1,489 for lost wages, unpaid holiday pay and one week’s unpaid wages.
—Selected and written by Miriam Bell |
