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Macdonald v Gifkins t/a Grey Lynn Veterinary Clinic—ERA, Auckland, February 2008
Unjustified dismissal claim—successful: Changing the locks of the clinic doors to prevent an employee getting in were not the actions of a fair and reasonable employer, according to the Employment Relations Authority, which upheld the employee’s claim of unjustified dismissal.
The employee had been employed as a veterinary nurse at the employer’s veterinary clinic. Several days before the lock-out she had raised a number of issues she had about her hours and the level of responsibility expected of her with her employer.
Although her employer discussed the issues with her, the woman felt the issues were not dealt with satisfactorily. The next day she called in sick, and then had another conversation with her employer about her employment issues. Her employer ended that conversation with the words “we need to part ways”.
While the employee thought this meant she had been dismissed, she was unsure. Over the next couple of days she left several messages with her employer asking for clarification, and when she turned up at the clinic she found the locks had been changed and she could not get in.
She was later issued with a trespass notice by her employer, and was also unable to negotiate the return of her personal property from the clinic.
The woman lodged a personal grievance with the Employment Relations Authority. However, her employer denied she had been dismissed from the clinic, instead saying she had resigned.
Her employer also failed to turn up for the arranged mediation session and, later, for the Authority hearing into the situation.
The Authority found the employer had not behaved in the way a fair and reasonable employer would have at any point in the series of events. It found the employee had been unjustifiably dismissed and had a genuine personal grievance.
The Authority awarded the employee $10,640 lost wages, $3137 holiday pay, $8000 as compensation for humiliation, $1000 as compensation for the loss of benefit of attending an Australian conference, and $2000 for compensation stemming from the non-return of the employee’s personal property.
The employer was also ordered to pay a penalty of $500 to the Authority.
Rochford v Victoria University of Wellington—ERA, Wellington, December 2007
Claim of unjustifiable actions leading to disadvantage—unsuccessful: A long-term university employee’s claim of unjustifiable disadvantage in his employment was dismissed by the Employment Relations Authority.
The employee claimed the university had breached its obligation of good faith towards him, and had also failed to consult him over its decision to remove his authority in a number of areas—but particularly to hire casual staff.
He also claimed the appointment of an operations manager was intended to deal with a problem to do with him, and that he had raised a personal grievance with the university which it had failed to respond to.
However, the university said the new operations manager had been appointed to “bring about better synergies in the service delivery areas”. It also said that the direct duties involved with the man’s role were unaffected by the appointment, although he did have to report to the operations manager who had taken more direct supervision over the area than her predecessor had.
The Authority said that the case was a complex and unusual employment relationship problem, and that it appeared to rest on an allegation of a lack of consultation. It also said that the problem had been made more difficult by the lack of specificity on what the events were that the employee claimed he had not been consulted on.
The Authority found that the employee’s job description did not refer to him hiring staff, either permanent or casual, as part of his role and that he could not expect his ability to do so would continue after the appointment of the operations manager.
It also found that he had not been the subject of unjustified actions in his employment, nor had he been disadvantaged. It dismissed his claim and did not award any of the remedies sought.
The Wellesley Ltd v Adsett—Employment Court, Wellington, December 2007
Appeal against ERA ruling of unjustified dismissal—unsuccessful: Misleading statements led to an employee’s belief that he had been dismissed from his new full-time job, according to the Employment Court which upheld an Employment Relations Authority decision.
The employee believed that he had been employed as a permanent camp manager for the company’s camp conference centre. While what was agreed on at the man’s job interview was the subject of much dispute, the man claimed he had been given the position of camp manager.
He also denied that he had said he would accept casual employment because of his personal circumstances.
A couple of weeks after the employee started the job he was told he was no longer camp manager and was instead a casual employee. He said he was informed that he was rostered to work 15 hours the following week, and that he was not rostered on to work at all after that week.
However, the company claimed the man was not properly qualified for the role of camp manager, and that it had offered him casual employment because he was “down on his luck”.
It said that it was not happy with his performance in the job in the first couple of weeks, and had downgraded his hours as a result. It also indicated that, as a casual employee, the man should have expected this, and that it was simply a reduction in hours not a termination of employment.
Judge Shaw found that, although the man had been employed as a day-to-day manager rather than a strategic manager, he had had reasonable grounds to believe that he was in permanent employment. She said that, following the man’s employment, the company CEO had become dissatisfied with a number of different aspects of the situation.
As a result, the CEO dramatically reduced the employee’s hours and directed one of his staff to ring him and tell him that he was no longer to be camp manager. Judge Shaw said these actions amounted to a dismissal and that, even if he were not directly dismissed, his hours were reduced to the point where his employment effectively ceased. She also found that the company’s employment practices were far from satisfactory and showed little understanding of what casual work is.
Judge Shaw found the company did not act in the manner of a fair and reasonable employer, and that the man had a genuine personal grievance because he had been unjustifiably dismissed. She awarded him $13,921.31 lost wages, $102.95 holiday pay and $10,000 compensation. She also ordered that the company pay a penalty of $1000 to the court.
Chief executive of the Department of Corrections v Imo—Employment Court, Auckland, November 2007
Challenge to ERA ruling of unjustified dismissal—unsuccessful: Accusations of serious misconduct about the behaviour of an employee were rejected by the Employment Court which overturned the employer’s appeal against an earlier Employment Relations Authority ruling.
The employee was dismissed by the Department of Corrections for serious misconduct during workshops he was conducting in his role as a criminogenic facilitator at Ngawha prison.
Over the course of two workshops, the man had first disclosed a personal incident of drunk driving and then vented his frustration about the department to the group.
The department claimed this behaviour amounted to serious misconduct as it had destroyed the integrity of the programme and also affected the prisoners’ perception of the employee as an authority figure. It said this amounted to a breach of the principles of effective correctional practice and could increase the probability of reoffending in group members.
However, the man accepted that his behaviour was wrong and said he was willing to accept correctional instruction. He also said that he had been under a lot of stress due to the unexplained criticism of a new supervisor and his daughter’s ill-health. In his view, his statements—although inappropriate—were not such as to cause a serious erosion of trust and confidence in the department.
Judge Shaw said the issue was whether the employee’s behaviour was a performance issue which could be rectified, or whether it amounted to serious misconduct. She found that, while the employee’s criticism of the department qualified as misconduct, the rest of his behaviour showed a lack of judgement, rather than an intention to undermine.
She also found that the remarks made by the employee were not so serious as to justify the department’s belief that the employment relationship had completely broken down.
For these reasons, Judge Shaw found that a fair and reasonable employer would not have dismissed the man. Instead the department should have accepted the behaviour was a lapse of judgement, and addressed the performance issues revealed by the behaviour.
Judge Shaw found that the man had been unjustifiably dismissed, and should be reinstated. However, due to his contributing conduct, she did not order any compensation, although he was entitled to any wages lost as a result of the dismissal.
Taylor v Mastfix Maintenance Ltd—ERA, Wellington, October 2007
Application for remedies for unjustified dismissal—successful: The Employment Relations Authority found in favour of an employee who said he was unjustifiably dismissed for no reason and with just two weeks notice.
While the company claimed the man had only ever been engaged as a casual labourer, the man said that, although he was originally employed in that capacity, he had quickly progressed to working regular hours as a hammer hand.
After the man had been working for the company for 11 months he was given two weeks notice that his employment was to be terminated. He said that, at the same time, he was told that another employee would be leaving the company, but that this had turned out to be untrue and the other employee was still employed by the company.
The employee felt this qualified as a breach of good faith. The company claimed the dismissal was because of shortcomings in his performance, although the employee said he had never received any oral or written warnings about his performance.
The man also said that he was owed arrears of income, particularly for 10 statutory holidays, as well as compensation for humiliation. However, the company denied this, and claimed that his hourly rate had incorporated his holiday pay.
The Authority found that the payroll history provided by the company supported the employee’s claim that he had worked regular and consistent hours over his 11 months of employment.
It also found that some of the other documentation (including the copies of warnings and a warning record) supplied by the company lacked credibility, while the man’s evidence was credible.
For these reasons, the Authority found that the termination of the man’s employment had involved significant breaches of employment law, and he had been unjustifiably dismissed—due to no fault of his own.
The Authority awarded the employee remedies of $10,000 compensation and $3610 in lost wages as well as holiday pay.
—Selected and written by Miriam Bell |
