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Te Rangi v Tachikawa Forest Products (NZ) Ltd—ERA, Auckland, July 2008
Unjustified dismissal claim—unsuccessful: Failure to comply with his employer’s explicit health and safety instructions led to an employee’s claim of unjustified dismissal being overturned by the Employment Relations Authority.
The employee was dismissed a fortnight after an incident in which he was observed accessing a machinery blockage by unsafe means. He had been operating a horizontal saw which had become blocked by some of the boards travelling along the conveyer belt. To free the blockage, he shut down the machine and then approached the blockage area from an elevated walkway which hangs 4.9 metres off the floor. To get to the blockage area he climbed over the walkway’s handrails and then, after removing the blockage, he climbed back up again.
The site manager and the company’s health and safety manager saw the employee carrying out this procedure. They made a formal report about the incident, and then instigated an investigation, immediately.
During the investigation, the employee demonstrated that he was fully trained in the correct safety procedures, but had failed to observe them because he was acting out of urgency. He also said that his reason for not pursuing other options to deal with the blockage was that, in the circumstances, they were too slow or not as safe as the route he had taken.
Eventually, the company found the employee’s actions constituted serious misconduct and dismissed him. After reassessing all the evidence, the Authority found the company had acted fairly and reasonably in rejecting the employee’s explanation for his actions. It also found the company had followed the correct legal procedures in investigating the incident, and then in dismissing the employee. Finally, it found the employee’s behaviour did constitute serious misconduct, and that he had no basis for a personal grievance.
Harris v Media Art Global—ERA, Christchurch, July 2008
Claims of unjustified dismissal and unjustified disadvantage—partially successful: A bartender’s complaint of unjustified disadvantage leading to unjustified dismissal was partially upheld by the Employment Relations Authority.
The man was employed as a bartender at a bar owned by the company. In March 2008 he was promoted to the role of night time bar manager. After returning from a pre-arranged holiday in mid-April, he sent a text message to his manager asking for confirmation of his hours of work for the coming week.
His manager told him that there were no hours allocated to him that week. Finding this strange, the employee and his mother made a few enquiries. They managed to establish that a serious complaint had been made about him, and that this complaint was being investigated. Eventually, they discovered that two of his co-workers alleged he had been harassing and bullying them.
At an initial meeting with his employer, the employee was informed that he had been suspended without pay—but he was not given any written material to respond to. In early May 2008, he was given copies of the statements from his co-workers which formed the basis of the allegations against him.
Shortly afterwards, the employee and his lawyer met with his employer again. The upshot of this meeting was that the disciplinary action undertaken was dropped, the employee was given an assurance that there would be no disciplinary sanctions and he was informed he was free to return to work.
However, the employee said that, at this meeting, he was also told that the two complainants would leave the bar if he returned to work. This led to his decision to resign because he felt he could no longer continue working at the bar. His employer denies that he made that comment at this particular meeting.
The Authority found that the investigation process adopted by the employer was an unsatisfactory one and did not, in any sense, comply with the requirements of the law.
It said that it “clearly cannot be a fair process to have an employee chasing around trying to establish what his work situation is, not being clear whether he is working or not, and not being confronted with the nature and extent of any allegations against him until the eleventh hour”.
However, the Authority also found the employee had been exonerated by the investigation and did have the choice to return to his job. Instead, the Authority said he had not been constructively dismissed, but had voluntarily resigned.
While the Authority found the employee had not been unjustifiably dismissed, it did find that he had suffered disadvantage as a consequence of the unjustifiable actions of his employer and, as a result, was entitled to remedies. The employee was awarded $1000 compensation for hurt and humiliation, $3240 for lost wages, and $750 as contribution to his costs.
Gouw v Wakefields of Sumner Ltd—ERA, Christchurch, July 2008
Unjustified dismissal claim—successful: The Employment Relations Authority found in favour of a head chef’s claim of unjustified dismissal, because of the way in which his employer handled the decision to dismiss.
Originally, the man was employed as head chef for a four week trial period. He was not provided with an employment agreement before starting work, although he was later provided with a ‘letter of appointment’ which set out the proposed conditions of his employment.
These conditions were an hourly rate of $18 for 35 hours per week, plus a bonus of $200 per month where gross turnover exceeded a certain amount, and the fact that the first month of employment was a trial period. The employee agreed to these conditions.
The employer was impressed that his new chef assembled a new menu, which was intended to attract more customers, at the same time as he oversaw the day-to-day activities of the kitchen.
However, he quickly became concerned that the employee was working longer hours than he was supposed to, and that this was making a significant contribution to the fact that wage costs were much higher than the turnover of the restaurant.
While the employer did extend the man’s trial period, because of a trip to the UK for his son’s wedding, he also gave the man several letters notifying him of his concerns about the wage costs. After receiving no response to his last letter, the employer informed the man that he had decided not to offer him an employment contract (due to the wage cost issue) and that he would be selling the restaurant.
The Authority found that—although the employee’s non-adherence to the agreed hours of work had contributed to the situation to a slight extent—the employer’s decision to dismiss the man, without engaging him on the issue of how the employment relationship was to end, was unjustified.
For this reason, the Authority found that the employee had been unjustifiably dismissed. He was awarded $2520 as four weeks lost wages, as well as $1000 compensation.
Ghanem v South Pacific Meats Ltd—ERA, Christchurch, July 2008
Unjustified dismissal claim—unsuccessful: Two misinterpreted phone conversations led the Employment Relations Authority to find against an employee’s claim of unjustified dismissal.
The man was employed by the company as a Halal slaughterman in early 2006. On November 23 of the same year, the Invercargill police charged him with rape. He was granted bail, but bailed to a family home in Christchurch.
After the court granted him bail, he returned to the accommodation he shared with a friend and co-worker who then received a phone call from the company’s production supervisor.
During the conversation, the friend said the supervisor told him that the employee had been replaced in his role at the company. He also said he told the supervisor the employee was there, but the supervisor said it was not necessary to talk to him. After the friend communicated this to the employee, the employee attempted to contact the supervisor. When he did, he was told his job was ‘gone’.
The employee decided he had been fired and, a year later after he was acquitted of the rape charge, he lodged a personal grievance (due to unjustified dismissal) against the company.
However, the company said the supervisor had no authority to dismiss a worker, that Halal slaughterman were difficult to recruit and would not be dismissed lightly, and that the firm’s employment records showed the man’s file was still open, which suggested abandonment of employment not dismissal.
While the Authority found that the evidence of the two employees was credible and truthful, it also found that the friend had misinterpreted his conversation with the supervisor. The Authority said it appeared the supervisor had probably meant to convey that the employee’s job was covered until his situation was sorted out, and that the friend took this to mean the employee was dismissed.
The Authority also found that the employee then went on to misinterpret his own conversation with the supervisor—probably due to the fact he had been pre-programmed to confront the supervisor about his apparently lost job.
Furthermore, the Authority found that when the employee left Invercargill for Christchurch, he was effectively terminating his employment agreement.
For these reasons, the Authority determined that the employee had not been unjustifiably dismissed and did not have a personal grievance.
Mitalas v Eustruct Ltd—ERA, Christchurch, May 2008
Unjustified dismissal claim—successful: The Employment Relations Authority awarded a hammer hand over $17,000 after it found that his former employer has unjustifiably dismissed him, after accusing him of ACC fraud.
The employee (who is also a top ice hockey player) started working for the company as a hammer hand, on an individual employment agreement which guaranteed him 40 hours work a week, in early 2006. After working for the company for about four and a half months, he suffered a minor back injury one day. Although he discussed the injury with the leading hand on site, he did not file an incident report.
He continued to work—on lighter duties—for another week before going to see his doctor where he completed an ACC form which made it clear that the injury was a work injury. Unfortunately, he filled out several crucial dates on the claims form incorrectly. In the meantime, the employee had visited one of the directors of the company who had told him that he was not required to work the following week due to a decline in the work available. The employee was not initially concerned about this, because of his back injury, and told the director about his injury and said he was going to visit the doctor about it.
However, after he sent the director two text messages updating him on his condition, he received a phone call in which he was advised him there would be no work for him at the company for several months. The employee went to visit the director to drop off the ACC forms and, at this point, the two argued over whether the back injury was a work injury. Shortly afterwards, the employee was advised of his dismissal in a phone conversation.
The company claimed his dismissal was due to dishonesty and fraud in relation to the ACC claim, as well as threatening behaviour to a co-worker. However, the employee denied these allegations.
The Authority found that, in terms of procedure, the dismissal was unfair. Given the serious nature of the allegations, a proper investigation should have been undertaken by the company—and that did not happen. Furthermore, the Authority said that, if such an investigation had occurred, the employee’s explanation would have been found to be accurate.
As a result, the Authority found the employee had been unjustifiably dismissed because a fair and reasonable employer would not have dismissed him in the circumstances. He was awarded remedies of $6577.10 plus interest, $10,000 compensation for humiliation, loss of dignity and injury to feelings, and $340 reimbursement for fines sustained by the employee while driving an unwarranted company car.
—Selected and written
by Miriam Bell
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