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Pou v Alliance Group Ltd—ERA, Christchurch, July 2008
Unjustified dismissal claim—successful: A quality assurance officer’s claim of unjustified dismissal, due to her criminal past, was upheld by the Employment Relations Authority.
The employee had three criminal charges (two of theft, one of receiving stolen goods) pending when she was interviewed for the quality assurance officer job by the company. In the interview she was not asked to disclose any previous criminal convictions, and nor did she offer any such information.
After she had been working at the company’s plant for about five months, a local newspaper reported on her court appearance for the three charges. As a result, the woman explored the prospect of resignation. However, she claimed she was discouraged from resigning by several managers and remained in her role.
When the employee’s convictions for the three charges were reported in the local newspaper, the company decided to institute a disciplinary investigation into the employee’s behaviour. The investigation resulted in the employee’s suspension and then dismissal due to the company having lost trust and confidence in her because of her convictions for dishonesty.
The employee claimed that the company should not have relied on her conduct prior to her employment for its decision to dismiss her. She also claimed one of the senior managers was biased against her, and that other managers had assured her that her job was safe. Further, she claimed that both her suspension and her dismissal were unfair and not justified.
The company disputed the woman’s claims, and said that, during her employment, she had been dishonest about her criminal history. It also said that none of its other quality assurance officers had criminal convictions for dishonesty and it did not think it appropriate for the woman to be the exception to the general rule.
However, the Authority found in favour of the woman. It said that, while her pre-employment conduct [not disclosing her criminal charges in the job interview] was unethical, it was not unlawful. It also said that the manager accused of bias did seem to have divorced her issues with the employee to the extent required to conduct a robust and fair disciplinary process.
While the Authority found the woman’s claims of managerial reassurance—about the safety of her job—to be misconceived, it found the suspension imposed on her to be an ‘ambush’ and unfair. It also found that the woman’s dismissal was unjustified, and that the company should not have dismissed her due to her pre-employment criminal misconduct.
The Authority said it came to this conclusion because the offences she was convicted for did not impact on her ability to do her job.
As a result, the Authority found that the employee had been unjustifiably dismissed, had a personal grievance, and was entitled to remedies. However, it assessed her contribution to the dismissal as being at 50 percent. It awarded the employee $2000 compensation for hurt, humiliation, and injury to feelings, as well as $2700 less the 50 percent contribution ($1350) for lost wages.
National Distribution Union v Gordon & Gotch Ltd—ERA, Auckland, July 2008
Claim for relocation payment—unsuccessful: The Employment Relation Authority found against two employees who claimed they had either been made redundant, or were owed relocation costs, due to the company’s move to another location.
First, the Authority determined that the collective employment agreement, which covered the two employees, required that relocation payment was only payable to employees who had been made redundant. The Authority then assessed the two employee’s situations to ascertain whether the relocation had, in fact, resulted in the two employees being made redundant.
One employee said the travel time and costs resulting from the extra travel necessary to reach the company’s new location had made a considerable impact on her life—particularly in terms of caring for her grandchildren. The other employee also said the extra travel time and costs had had an impact on her life, and said that she suffered from severe anxiety which was brought on by long drives.
However, the company said both employees were able to catch public transport to a location near the company’s new site. Furthermore, the company was willing to be flexible with both employees’ hours to enable them to meet non-work obligations.
The Authority found that neither of the employees had been made redundant by the company’s relocation which was due to genuine business requirements. It cited the availability of public transport and the willingness of the company to offer flexible hours as its reasons for this decision.
The Authority also said that the situation may have been different for the employee who suffered from anxiety if she had told the company of her disorder during the relocation process.
Costs were reserved.
Galbraith v Hopkinson—ERA, Christchurch, July 2008
Claim of unjustified dismissal and unpaid holiday pay—successful: The Employment Relations Authority upheld an employee’s personal grievance claim, but found that it was caused by a genuine redundancy situation.
The man had been employed by the respondent to work in her strawberry farm business for two short periods. However, the business was not successful which led the respondent to send the man a text message which said that she could no longer afford to employ him and that he would have to find another job.
Shortly afterwards, the man had a discussion about the situation with the respondent’s partner. He was given a cheque for his work up to that point, and told that he would be paid holiday pay. Initially, the employee accepted the situation, but when he did not receive the holiday pay he tried to obtain it by raising the prospect of a grievance. At this point, the situation became contentious, and resulted in the employee actually raising a grievance.
The Authority found in favour of the employee. It said the man was clearly owed $991.90 holiday pay, and that it should be paid to him even though the respondent had made an application to be adjudicated bankrupt. The Authority also found that the man’s dismissal was unjustified because the respondent had fallen short of what a fair and reasonable employer would have done in the circumstances. For example, the man was not given notice or paid in lieu.
While the employee did not contribute in a blameworthy manner to the situation, the Authority said he did not seem to have suffered any significant hurt or humiliation. However, he was both inconvenienced and annoyed at his sudden loss of employment. Therefore the Authority ordered that he be paid $900 in lieu of notice and $1000 compensation, plus the holiday pay owed.
Waghorn v the New Zealand Antarctic Institute—ERA, Christchurch, July 2008
Claim of unjustified dismissal and breach of good faith—unsuccessful: An employee’s complaint to the Employment Relations Authority, that misleading information and a dysfunctional relationship [between her manager and the CEO] led to her unjustified dismissal, was unsuccessful.
At her job interview, the woman, who was employed as a communications advisor, was told the institute had a high performing culture and a happy environment.
Soon after starting work, she found that her manager and the CEO had an “extremely antagonistic and dysfunctional” relationship. The employee felt that she was “trapped in the middle”, and she found this extremely stressful. She also felt that her manager treated her “like her PA” and did not let her do the job she was employed to do.
She spoke to the institute’s personnel advisor about her situation, and was advised to speak directly to her manager, but she did not want to do this as she felt it would affect their working relationship. Eventually, she wrote a memo to the CEO who briefed senior management about the situation and initiated a series of meetings where it was agreed the woman would be given more autonomy.
The employee said she was never given that autonomy and that, in fact, her duties were reduced further. She says she made several further complaints but that nothing happened and so, eventually, she became frustrated and resigned.
However, the institute denied that it engaged in misleading conduct, or behaviour likely to mislead the woman, during the interview and appointment process. Further, it said that once it became aware of her concerns it moved to address them—in spite of timing difficulties. The institute also said that it was prepared to continue to search for a solution to the problems until the time the woman handed in her resignation.
The Authority found the institute had not behaved in a misleading fashion towards the employee, and that it had behaved appropriately and with good faith in a bid to resolve the employee’s complaints.
It also found that, although the employee’s manager and the CEO had had a problematic relationship and the fallout may have impacted on her, the actions between the two were not directed at the employee in any way. For that reason, they did not constitute unjustified actions towards her.
The Authority said that, given this evidence, a claim of constructive dismissal simply could not be upheld, and that the woman could not make out a personal grievance against the institute.
Davies v South Pacific Meats Ltd—ERA, Christchurch, June 2008
Claim of unjustifiable disadvantage—unsuccessful: Failure to officially raise a complaint of unjustifiable disadvantage with in the 90-day limit led to the dismissal of an employee’s personal grievance claim.
In 2004, the man had been employed by the company’s predecessor as a shepherd. He worked in this role until mid 2006 when he was moved to another job while a workmate was on annual leave.
After the workmate returned, the man was moved to another new job. He was not happy with these changes, because he wanted to return to his original role, and complained to his employer—which said he would continue to be deployed in roles around the company’s processing plant.
Later that year, SPM took over the plant from the man’s previous employer. In early October, the man wrote a letter to his new employer, which complained about his situation and his related drop in income. His new employer did not respond to that letter, and three weeks later the man raised a personal grievance.
The company then claimed the grievance had been raised out of time as it was more than 90 days after the events complained of. However, the employee said he had raised his grievance in an informal way at an earlier date with his original employer, by constantly complaining to his manager about the situation.
He also said that his first letter to his new employer qualified as raising his grievance. In response, his employer said that none of the employee’s earlier communications actually raised a personal grievance.
The Employment Relations Authority agreed with the employer, and said the man had to have raised his grievance by early October in order for it to qualify [time-wise]. It also said that, while the man had complained regularly about his situation, nothing in any of his earlier complaints amounted to the raising of a grievance as they lacked the detail and clarity necessary to put an employer on notice that the matter was serious and needed to be addressed.
The Authority said that, given this finding, the question of whether there had been any disadvantage to the employee as a result of an unjustifiable action was “somewhat academic”. Further, it found that, on the balance of probabilities, the employer had taken no steps which could potentially place it in the position of acting unjustifiably toward the man and thus causing him disadvantage.
—Selected and written by Miriam Bell |
