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Devi v Manhaas Industries Ltd—ERA, Wellington, May 2008
Challenge for wage arrears and holiday pay—unsuccessful: Issues to do with wage claims formed the basis of a woman’s complaint against her former employer, which was not upheld by the Employment Relations Authority.
In 2003, the woman came to New Zealand from Fiji to make Indian sweets for the company. She was issued with work permits which ran out in late 2006 and, at that point, she returned to Fiji. Over the course of her employment, she signed four different employment agreements. She was initially paid $9.50 an hour, but that rate was increased to $12.50 in mid 2005.
The employee claimed that, in 2005, the company had agreed to retrospectively pay her $12.50 an hour from the start date of her employment, and that this agreement had not been upheld—which meant the company owed her some unpaid wages. She also claimed that she had an agreement to be paid extra hours for cleaning overalls, dust coats and tea towels, as well as to personally cook her employer his meals.
However, the company denied all of the woman’s claims.
After confirming that the company, Manhaas Industries, was definitely the woman’s sole New Zealand employer, the Authority found there had been no agreement to retrospectively pay her $12.50 per hour from the start date of her employment. It said such an agreement was not plausible given the existence of the four employment agreements. Furthermore, the Authority said the woman had provided no evidence to support her claim.
The Authority also found that, although the employee had kept her own records of the hours she worked, these hours differed from the hours recorded by her employer—which she had signed for when collecting her wages. On top of this, she had never complained about the supposed extra hours she was working to anyone, including her supervisor.
As a result, the Authority found that the woman had not established her various claims against her former employer, and she was, therefore, unsuccessful in her complaint.
Maguire v Drake NZ Ltd—ERA, Wellington, May 2008
Claim of unjustified dismissal—successful: The Employment Relations Authority found in favour of an employee who said she was dismissed, with immediate effect, after giving one month’s notice because she had found another job.
There was little disagreement between the employee and the recruitment company which had formerly been her employer over the facts of the situation. Both parties agreed that the employee had handed in her notice and that, as a result, she was required to return her key and uniform jacket and to leave the workplace.
The employee thought that she was then required to be available for the following month, in case the company needed her, and that she would be on a period of garden leave. She only realised this was not the case when she did not receive any pay for her final month [post-notice].
However, the company believed that their employment agreement allowed them to terminate the woman’s employment as soon as she gave notice of her resignation because she was going to work for one of their competitors. Furthermore, the company refused to provide the woman with a verbal reference, and said that its position on the situation was made clear to her on a number of occasions.
The Authority found that, under the Employment Relations Act, an employer who is proposing to make a decision that will have an adverse effect on the continuation of employment of one of its employees is required to provide that person with information about the decision. The Authority said that, in this case, that had not happened.
Rather, the company had not acted fairly and reasonably under the ERA because it did not openly and clearly consult with the employee on receiving her notice, and before terminating her employment. Also, the company did not advise her of its decision at the time, and it made no attempt to discuss its decision to terminate her employment with the woman.
While the Authority conceded the company had, and has, a legitimate interest in protecting its clients and business interests, it also said that concern is not a blanket defence in terms of its employment obligations to the employee.
The Authority found there was no contributory fault on the part of the woman, and ordered the company to pay her one month’s pay (around $2500) as well as $2000 compensation for humiliation.
Valentine v Canterbury District Health Board—ERA, Christchurch, May 2008
Personal grievance claim—partially successful: Proposed changes to a nurse’s hours of work formed the basis of this personal grievance claim, which was partially upheld by the Employment Relations Authority.
The woman had been employed as a transit nurse at Christchurch hospital since 1999. She had always been unwilling to work ‘unsociable’ shifts due to the impact that would have on her family life and therefore she had always worked between the hours of 9am and 5.30pm. She felt her employment was governed by, among other things, a 2004 letter from her immediate employer which contained a provision stating that her hours of work were between 9am and 5.30pm.
Late in 2006, the board decided to reorganise the nurses’ rosters at Christchurch hospital with the aim of better aligning the service with the hospital’s commitments to its patients. This reorganisation involved a requirement for all nurses to work shift hours, as opposed to daytime hours.
The woman was opposed to this. She claimed that the requirement went against her employment agreement and that, if it did not, it meant that her job had effectively disappeared which meant she would be entitled to redundancy compensation. The board disagreed, and said that the employee had no entitlement to redundancy compensation because she had simply refused repeated attempts at reconfirmation and/or redeployment to shift work.
While the Authority found that the board had not behaved badly—rather it had misinterpreted its legal obligation to the woman and had, in fact, done everything it could to avoid the necessity for a termination of her role, it also found the employee’s role had effectively been made surplus to requirements.
The Authority, which emphasised that the woman’s position was probably unique for a nurse working in a public hospital, also found that the change of hours was a fundamental change to the role she had been employed to do. Therefore it instructed the board to try and resolve the [compensation] issue by working through the terms in the management of change provisions in the woman’s employment agreement.
Maryniak v Waikato Institute of Technology (WINTEC)—ERA, Auckland, April 2008
Claim of unjustified dismissal—unsuccessful: An employee’s claim of unjustified dismissal, due to the ‘predetermined disestablishment of his role’, was not upheld by the Employment Relations Authority.
In 2004, the institute announced it was running an organisation-wide review of its operations and structures. Staff were advised the review would result in some reduction in staffing. At this time, the man, who had worked at the institute for 15 years, was in the role of technical producer/educational media which involved providing AV services to users across the institute’s campuses.
Shortly after the review started, the employee was told his position was likely to be disestablished—although consultation would be occurring. The consultation process took place over a couple of months but, ultimately, it was decided to disestablish the man’s position and outsource the AV centre’s services. Although he was invited to several meetings to discuss the situation, he did not attend any of them. Complicating matters was the fact that, in early 2005, the employee went on sick leave as the results of a workplace accident.
Not long after, the man lodged a personal grievance. This was not resolved by mediation and, two years later, he sought a determination from the Authority on the personal grievance.
While the employee claimed his job had been randomly targeted in the review, that the consultation process had not been genuine, and that the outcome was predetermined, the institute said this was not the case and that the man’s job loss was due to a genuine organisational-wide review and restructuring.
The Authority found that an objective assessment of the evidence showed the institute’s position was genuine. Furthermore, it found that the employee had been treated fairly throughout the review process, and that there had been no predetermination by the institute in relation to the matter. The Authority also found that the institute’s action were typical of those of a fair and reasonable employer in the circumstances.
For these reasons, the Authority said the employee had not been unjustifiably dismissed, and his claim was declined.
Toll NZ Ltd v Rowe—Employment Court, Auckland, December 2007
Challenge to ERA unjustified dismissal determination—unsuccessful: Lack of a return-to-work programme ultimately, although not directly, led to an unwell employee’s dismissal, according to the Employment Court—which upheld the employee’s claim of unjustified dismissal.
The man, who was a long-time employee of Toll NZ, became ill in May 2005. He took an extended period of sick leave but, shortly after returning to work, he drove his train through a stop signal [which is known as a SPAD]. He applied the brakes and then reversed the train back. However, he did not report the incident, despite being aware that he should have done so.
Company management began an investigation into the incident. This led to the employee’s summary dismissal for serious misconduct. He raised a personal grievance, which was upheld by the Employment Relations Authority. Toll challenged the Authority’s determination, and Rowe then brought a cross-challenge alleging the health and safety obligations owed to him had been breached.
The employee claimed his dismissal was unjustified because of the company’s approach to his medical condition, and the frequency of SPAD incidents by other employees and the absence of dismissals in similar cases. He also challenged the company’s investigation procedure.
However, the company said the man had been involved in another SPAD in 2004 and that he was made aware of the correct reporting procedure at that time. It also said he had been dismissed for failing to report the incident and then denying the allegation when approached by his manager. Furthermore, the company’s management claimed not to be aware of the full extent of the employee’s health issues.
Judge Shaw found the company was under an obligation to its employees to ensure their safety, and has specific responsibilities to protect its employees from harm. One of these responsibilities is the adoption of a return-to-work programme for employees who have been off work on extended sick leave.
The responsibility for initiating a return-to-work programme lies with the relevant employee’s manager, said the judge. Unfortunately, the manager seemed to be unclear about his obligations in this area, as well as being sceptical about the man’s health issues. As a result, the employee was never put through a return-to-work programme. The judge said this constituted a breach of the company’s health and safety obligations towards him.
Judge Shaw also found that the investigation procedure was flawed, that the company’s conclusion that the man was not actually ill was unreasonable, and that the suggestion of medical retirement—which had been raised by his representative—was not properly considered. Objectively viewed, a fair and reasonable employer would have taken the option of medical retirement when dealing with the situation, said the judge. Therefore, she found that the company was not justified in dismissing him because of his misconduct.
The employee was awarded reimbursement of 12 months’ salary as well as $25,000 compensation for humiliation, loss of dignity and injury to feelings. However, the judge also ordered that the monetary awards were to be reduced by 10 percent for contributory actions.
—Selected and written
by Miriam Bell |
