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Intimidation claim
Barrett v Horizon2 Ltd—Employment Relations Authority, Auckland, November 2007
Unjustified dismissal claim—unsuccessful: A scientist’s claim of bullying and intimidation leading to unjustified dismissal was overturned by the Employment Relations Authority.
The man, who was recruited from Canada, had worked for the company since 2001. Over the years, his position was altered several times to incorporate shifting responsibilities in both research and production. In February 2006, the man was given permission to reduce his work hours in order to spend more time with his children. This arrangement was intended to finish in August that year. At the time, it was also agreed to reduce his salary accordingly, and that the focus of his work was to be research.
During May 2006, the company restructured. The man’s position was one of those affected, and the production function within his role was removed entirely. Although consultation with the man was conducted, he did not want to accept his new role. He said it was significantly altered and he would only accept it if he was paid more.
The company did not agree with either the claim or the proposal, and embarked on a process of negotiation with the man. It also offered to extend the terms of his variation to March 2007, or he could return to work on a full-time basis.
The man did not respond to the company’s offer, nor did he return to work when the terms of his employment variation ended. The company attempted to discuss all its various offers with him, but did not receive any appropriate responses. In February 2007 the company embarked on a disciplinary process. Meanwhile, the man did not return to work and filed a personal grievance with the Authority claiming he was being bullied and intimidated.
An attempt at mediation was unsuccessful, and the matter went to the Authority for a hearing. The Authority found that the man’s position had not been redundant and nor had the man. Furthermore, proper consultation by the company had taken place throughout the process, and there had been no breach of good faith.
The Authority also found that the man had not been subjected to intimidating and bullying behaviour by the company, and that the man had not been unjustifiably dismissed or unjustifiably disadvantaged. Finally, it found the man was not entitled to any compensation, punitive damages, loss of income or the bonus he requested.
Poor practices
George v Corriebeg Trust t/a Discovery Motor Lodge—Employment Relations Authority, Wellington, November 2007
Personal grievance claim—successful: Dispute over changes to a cleaner’s working hours led to the Employment Relations Authority finding in favour of the cleaner, and also stating the matter illustrated “very poor practice” by the employer.
The woman had worked for the company part-time since late 2005. She worked each week, and was paid weekly, but worked variable hours as an hourly paid worker. In early February 2007, all the company’s cleaners met with the motor lodge’s manager to discuss a change to their employment arrangements. The change meant the workers would be paid based on the number of rooms cleaned instead of at an hourly rate. The woman disagreed with this proposal.
There was some dispute over what happened next and whether the woman had been issued with an ultimatum, about the proposed change, by the manager. However, the Authority found that, although there had been no ultimatum issued, the manager had told the woman, who was on leave, that her leave had been extended —even though the woman wanted to return to work.
Several meetings occurred over the proposed change, as well as the extended leave, and, eventually, the woman was told that she could return to work and be paid at an hourly rate but that she would be doing odd jobs rather than cleaning rooms.
At this point, the company owner got involved and rang the woman to tell her to stay away from the travel lodge. The woman then decided not to return to work because she had lost trust in her employer, and visited a lawyer.
The Authority said that, not only were there no formal employment arrangements in place, but that most of the workers had very poor understanding of their personal leave arrangements. Furthermore, the company could not produce any reconciliation of holiday records and hours worked—other than the payments made and recorded in the summary produced.
The Authority also found that the owner’s phone call to the woman was wholly unjustified and disadvantaged her employment. It also found that the woman was given no choice in, or notice of, the decision to extend her holidays.
As a result, it found the woman had a genuine personal grievance, and that she had been constructively dismissed. She was awarded $5000 compensation, $1500 costs, $500 lost wages, and the $70 filing fee.
Untrue allegations
Riddell v Mahuika-Forsyth—Employment Relations Authority, Christchurch, November 2007
Unjustified dismissal claim—successful: Unfounded allegations of drunkenness and thievery helped lead to the Employment Relations Authority’s upholding of a bar manager’s claim of unjustified dismissal.
The man was employed by the respondents in November 2006 to manage their Akaroa bar for a minimum of 40 hours a week. He was to be provided with $14 per hour for this role, as well as accommodation.
In December 2006 he was advised he would have to run the business by himself without the assistance of the respondents. However, the respondents’ claim that the man then became a profit-sharing partner was denied by the man. He said he had no involvement with how the business was to be run and always saw himself as an employee only.
In late January 2007, the man was told the business was closing down. As a result, he became concerned about receiving payment for work which he had already performed, but had not been paid for. When he requested the earnings he believed that he was owed, the respondents told him the business had not made any money because he was a thief and had been drunk while in charge of the bar.
At this point, the man obtained police confirmation that he was not drunk, as well as five letters from customers of the business which confirmed that he had always acted professionally in his role.
The Authority found the behaviour of the respondents was not that of a fair and reasonable employer. It also found the man had never been a profit-sharing partner in the business, and that he had not contributed to his situation in any way.
The Authority found the man had a genuine personal grievance, had been unjustifiably dismissed and was entitled to remedies as a result. He was awarded $10,000 compensation for stress and humiliation, $4260 in lieu of notice, $5239.40 for unpaid wages and holiday pay, and $1732 for costs and expenses.
Prison assault
Chief executive of the Department of Corrections v Tawhiwhirangi—Employment Court, Wellington, September 2007
Appeal against unjustified dismissal decision—unsuccessful: A prison guard’s complaint of unjustified dismissal, for the alleged assault of a prisoner, was upheld by the Employment Court.
The man held a senior custodial position within the prison service and had responsibility for, among other things, management of inmates. Early in 2006, a prisoner requested a meeting with him. During the meeting, the prisoner asked the guard to bring contraband (drugs and phones) into the prison for him.
The man refused and, when the prisoner tried to threaten him, ordered him out of his office and back to his cell. Followed by the guard, the prisoner went into the corridor outside—at which point a scuffle took place. Another guard, who had overheard the commotion, came into the corridor. Believing the senior guard was going to be attacked, he carried out ‘control and restraint’ procedures on the prisoner. The prisoner was eventually returned to his cell.
Both guards reported the incident to prison management, as did a nurse who treated the prisoner’s injuries. The prisoner then complained to prison management that he had been assaulted by the senior guard during the incident. An operational investigation into the behaviour of both guards involved was conducted.
The senior guard was suspended, but the guard who had intervened was not. A report derived from the investigation found that the senior guard was guilty of serious misconduct and should be dismissed. After a series of meetings, the senior guard was eventually dismissed in early 2007.
The senior guard took the case to the Employment Relations Authority which found that he had been unjustifiably dismissed by the department. The department then appealed that decision to the Employment Court.
Judge Coral Shaw found the department’s allegations against the senior guard had never been specified, and neither had the investigations terms of reference. While there had been CCTV footage of the incident and prison management believed it showed the man assaulting the prisoner, the man himself had never been informed of this. Nor was he given a chance to refute this interpretation.
Furthermore, the judge said that prison management had disregarded the eyewitness account, and evidence, of the other guard involved in the incident. This evidence backed up the senior guard’s version of events. Instead, too much emphasis had been placed on a) the prisoner’s account of the incident and b) the investigation report’s interpretation of what had happened.
Finally, the judge said that prison management had not investigated the allegations against the senior guard in the manner set out in its own policies, nor in accordance with the principles of common law.
Judge Shaw said the department did not act as a fair and reasonable employer would have—either in its investigation or in its decision to dismiss the senior guard. A fair employer would have concluded that, even if the alleged application of force by the man had occurred, it was in circumstances which did not justify dismissal. While the department may have reasonably concluded there had been breaches of its code of conduct, it should not have concluded they were serious misconduct.
The judge said the man had been unjustifiably dismissed by the department, and that the decision was based on inadequate evidence. A decision on remedies was deferred until a further hearing on reinstatement was held.
—Selected and written by Miriam Bell |
