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Kirkley v Ora Ltd—ERA, Auckland, February 2008
Compensation for unjustified dismissal and stress—partially successful: An employee’s multi-dimensional claim of workplace stress and unjustified dismissal was partially upheld by the Employment Relations Authority.
The woman, who had been with the business for several years, was employed as the company’s head of corporate services. However, from 2005 onwards, the business itself was under pressure due to a) funding issues and b) organisational restructuring. Between October 2005 and late February 2006, the employee claimed that she was over-worked and under-resourced from October 2005, that she drew these concerns to her employer’s attention repeatedly, and that the company owners failed to support her.
Eventually, her employers offered her a six-month ‘professional development sabbatical’ which she accepted. She was also asked to go in to work to sort out the payroll before fully embarking on her sabbatical. The employee did this but, unfortunately, the visit culminated in a series of behaviours which the employers claimed constituted serious misconduct on the woman’s part.
The employee visited her GP immediately after this. She was diagnosed as suffering from a number of stress-related ailments, and referred to a clinical psychologist for treatment.
Meanwhile, the employee (and her representative) embarked on a correspondence with her employers. The upshot of this correspondence was that her employers dismissed her for a) serious misconduct on her last visit to the office and b) because they did not believe she was suffering from a mental illness.
The Authority found that the woman was a) suffering from stress at the time of her last visit to the office and b) a particular incident in the supposed serious misconduct was not as serious as it first appeared. It also found that the investigation process into the employee’s dismissal was not fair and reasonable, and that her employers had not given her a proper opportunity to explain herself.For these reasons, the Authority found the woman had been unjustifiably dismissed.
However, the Authority also found that the employee had not made out a case for workplace-related stress in the months leading up to the suggestion of her sabbatical. It said there was no record that she had raised concerns about her workload with her employers, and said she had cancelled some planned leave even though her employers wanted her to take it. Furthermore, it found that the woman’s behaviour had a 10 percent contribution to the situation.
The employee was awarded four months lost wages and $15,000 compensation for the hurt, humiliation and distress that continued to suffer as a result of her dismissal.
Jessop v Chief Executive of Department of Corrections—ERA, Auckland, January 2008
Unjustifiable disadvantage claim—partially successful: Mishandling of feedback, relating to a complaint of bullying, led to the Employment Relations Authority partially upholding an employee’s claim of unjustifiable disadvantage.
The employee manages a team of eight. One of his team complained to the employee’s manager that he had been bullying them. The manager advised the man of the complaint about him. The employee asked his manager to undertake a formal investigation into the complaint because it was a serious allegation, and the manager said that he would look into the matter.
While the employee was away on leave, the manager conducted an informal inquiry and came to the conclusion that there was not enough evidence for a formal investigation. He also decided that there was evidence that the employee needed to make some changes to his management style.
The manager told the complainant, another staff member whom he had talked to, and the employee of his findings on the matter. However, the employee raised a number of concerns about the inquiry and his manager’s conclusions. Although the manager subsequently provided the employee with a written summary of his inquiry, feedback on the employee’s management style, and an apology for an aspect of the inquiry, the employee complained to the Authority that he had been unjustifiably disadvantaged by the whole affair.
The Authority applied a two-step test, established by an earlier case, to ascertain whether or not the employee had suffered from unjustified disadvantage due to the handling of the bullying complaint. After applying the test, the Authority found that the employee could have been slightly disadvantaged by the situation. The Authority said that three of the employee’s manager’s actions were inconsistent with the general duty of trust, confidence and fair dealing.
However, it also said that after the employee had raised his concerns, the manager had responded in an appropriate fashion. Furthermore, it found that the manager had acted in the way a fair and reasonable employer would have in deciding no formal investigation was necessary, as well as in apologising to the employee over aspects of the inquiry.
Ultimately, the Authority decided the employee had a personal grievance for unjustified disadvantage for part of his claim. He had sought an acknowledgment and an apology, and the Authority said the decision—which was in the public domain—along with the earlier apology, constituted the necessary remedies.
Bentley v Land Transport New Zealand—ERA, Wellington, January 2008
Claim of unjustifiable warning—successful: The Employment Relations Authority upheld an employee’s claim that she had received an unjustifiable warning for taking too much sick leave. Employed by the LTSA as a senior customer representative, the woman is entitled to nine days paid sick leave per year, under the collective employment agreement which applies to her. Employees can take the paid sick leave if they, a spouse, or a person dependent on their care is sick or injured. If an employee exceeds those nine days, they are accepted as being on sick leave without pay.
There was no dispute about the fact the employee took a lot of sick leave. However, there were a number of reasons for her use of sick leave. Besides having two children of her own, the woman fosters three children—who often require care for medical problems. Furthermore, the employee had taken a week’s sick leave due to workplace stress, and her husband had also faced a series of serious health issues.
The employee’s manager initiated several meetings with her to discuss her use of sick leave. The employee provided her manager with the reasons for her large amount of leave. While these reasons were accepted as genuine by her manager, he decided to issue her with a formal verbal warning for a 12-month period.
Although the employee still works at the LTSA, she claimed she has missed out on a promotion, and is suffering an unjustifiable disadvantage in her employment, due to the warning.
The Authority found there were genuine reasons for the amount of sick leave the woman had taken, and also that her manager had accepted those reasons. As a result, it said the woman’s behaviour did not constitute misconduct, and did not justify being given a formal warning. Furthermore, the Authority found that, while an employer can “fairly cry halt” to a worker’s employment if excessive sick leave is taken, no fair or reasonable employer would have concluded that that position was anywhere near being reached in this particular case.
However, the Authority did not find sufficient evidence to conclude that the employee had missed out on a promotion due to the warning. Therefore, she was not entitled to the amount of compensation she had sought, although she was entitled to $3000 compensation.
Richmond v Armstrong Alarms—ERA, Auckland, November 2007
Unjustified dismissal claim—successful: An employee’s claim of unjustified dismissal, after five months sick leave, was upheld by the Employment Relations Authority.
The man, who was employed to install alarms, had been working for the company for over three years when he had to take extended sick leave. He was away from work for five and a half months, but he posted or faxed medical certificates covering this period. In March 2007 he received medical clearance to return to work.
However, when he called one of his employers to advise the company of his ability to return to work, he was told they were managing alright without him there. Later that day, the employee received another phone call advising him that the company did not have the workload to keep him employed.
The company made no offer of alternative employment to the man, although a further meeting was suggested. The man declined the meeting request and asked for payment of two weeks wages, which the company agreed to pay him.
When the company did not pay the employee the payment it had agreed to, he filed a claim of unjustified dismissal with the Authority. The company said the man had not been dismissed, and that he had been absent from work for months without properly notifying them of his absence and this amounted to a resignation. It also claimed that it had been understood the employee had moved onto other employment.
The Authority found the man had not been given notice that his job was in jeopardy due to his absence, and that he was not given the opportunity to comment on his employer’s concerns about his absence.
It also said there was no mandate for the proposition that a long absence from work, due to illness, ends the employment relationship. Rather if the employment relationship is to end it must be a consequence of a justified decision based on reasonable grounds.
The Authority found the evidence clearly showed that the employee had been sent away after his leave of absence, and this amounted to a ‘sending away’. As a result, the Authority found the man’s dismissal was unjustified. He was awarded the payment of two week’s wage, as well as $7000 for hurt, humiliation and injury to feelings.
Gomes v Ministry of Social Development—ERA, Wellington, December 2007
Claim of unjustified dismissal and disadvantage—partially successful: Problems in an employment relationship led to a claim of unjustified dismissal which was upheld by the Employment Relations Authority. The employee, who was a senior manager at the Ministry of Social Development, claimed he had been unjustifiably disadvantaged by a) an unfair performance assessment, b) his removal from a particular project, and c) bullying by his manager.
His complaints about these particular issues were unable to be resolved by the department, so he went to the Authority. However, before the Authority had investigated his complaints, the department dismissed him because, it said, the employment relationship between the man and his manager had irreparably broken down.
Although the employee was a serial complainant and refused to accept the department’s decisions on many of his complaints, the Authority found he had been unjustifiably dismissed. It came to this finding because a) he had raised some concerns about departmental processes which had not been properly addressed; b) the department did not deal with him in good faith; c) he was not given a disciplinary warning before being dismissed; and d) the department had not looked into any other options besides dismissal.
However, the Authority found that the employee’s complaints about his performance assessment were not justified. It said that the department had properly reviewed the initial assessment after receiving the man’s complaints but that he had refused to accept the review’s conclusions.
The Authority also found the employee did not have a sustainable grievance in relation to his complaint about removal from the project, and that the department’s investigation into his complaint of bullying had been flawed but did not ignore the man’s concerns.
While the employee wanted to be reinstated to his former position, the Authority determined that would not be a workable option. Instead it ordered that he be reinstated to another position, no less advantageous to him than his former position. It also awarded the man $14,000 compensation for the unjustified dismissal.
—Selected and written by Miriam Bell |
