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Cunningham v Action Media Ltd—ERA Auckland, August 2008
Unjustified disadvantage and dismissal claim—successful: The dismissal of an employee whose partner made an angry phone call to the owner of the business was determined by the Employment Relations Authority to be unjustified.
The employee had worked for the company as a business development manager. He resigned after working there for a little over a month and gave the employer four weeks’ written notice.
While working out his notice, there were several instances where the business owner alluded to the employee being gay. These included offering to help the employee to find work with a gay magazine, laughing at his ‘butt crack’ that became exposed during a massage that was a regular service provided to staff, and imitating both the employee and his partner’s speech and mannerisms.
When the employee told his partner about the business owner’s behaviour, the partner was angry. He phoned the business owner and during the course of the conversation, made reference to sexual harassment and taking court action for constructive dismissal. He also told the business owner “Don’t mess with us—we’ll deal with you”.
As a result of the phone call, the employee was suspended on pay, and the business owner made a complaint to the police of threatening behaviour by the employee’s partner. The police questioned the employee and his partner at their home, but took no further action.
After an impasse was reached at a meeting to discuss the employee working out his notice (the employer wanted him to work from home but the employee wanted to work in the office), the employee was told he was dismissed and would receive no further pay.
The Authority accepted the employee’s evidence that the owner had announced he was dismissed. The dismissal was both procedurally and substantively unjustified, as there was no warning that the employee’s employment was in jeopardy.
The Authority found that the owner’s claim that the employee could not return to work at the office because other staff would feel uncomfortable was simply an invention with no basis. It was more likely that the owner wanted to avoid looking foolish in front of his staff.
In relation to the employee’s suspension, the Authority noted that while there were no direct actions on the employee’s part to justify his suspension, “it could in some circumstances be reasonable for an employer to suspend where the partner of an employee takes action against the employer or, as in this case, communicates something that the employer believes to have been a threat of violence”.
A separate determination was not needed in relation to the claim of unjustified disadvantage arising out of the employee’s suspension as there was only one working day between the date of suspension and date of dismissal.
The employee was awarded $3800 compensation for hurt feelings, humiliation, and distress, $3461.54 for lost wages plus nine percent interest on the money owed, and the $60 monthly mobile phone allowance that he was entitled to under the employment agreement for the notice period.
Hoyte v Hapag-Lloyd (NZ) Ltd—ERA Auckland, August 2008
Unjustified dismissal claim—successful: An employer’s failure to negotiate a new offer of employment for an employee when it sold its business was determined by the Employment Relations Authority to be a breach of contract.
The employee had been employed by the old company for over eight years before it was bought by the new company. Before the merger was to take place, the employees from both companies were given a presentation about the restructuring, and invited to apply for the (reduced) positions available. The employer informed employees about the selection criteria for redundancies and gave them an opportunity to comment.
The employee applied for three of the five positions available, but was made redundant—despite the fact that some of the employees who were offered jobs had worked for the employer for less time, and were less qualified and experienced than her.
The Authority started by looking at the employee’s employment agreement. It contained an employee protection provision, as required by the amended Employment Relations Act 2000. The provision, among other things, made a commitment that in the event of a restructuring, the employer would negotiate with the potential new employer regarding whether or not the new employer proposed to offer employment to the employee, and if so the terms and conditions of the proposed employment and commencement date.
The Authority determined that these negotiations were never carried out. The employee was not required to submit herself to be assessed according to the selection criteria at all. It was her old employer’s obligation to obtain a new offer of employment from the new employer. Failure to do so was a breach of her individual employment agreement. The employee was unjustifiably dismissed.
The Authority awarded the employee $6000 compensation for hurt and humiliation, loss of dignity and injury to feelings. She had obtained alternative employment prior to the end of her previous employment, and did not seek reimbursement for lost wages.
McEnaney v Eustruct Ltd—ERA Christchurch, July 2008
Unjustified dismissal claim—successful: The Employment Relations Authority rejected the employer’s claim that a worker was employed on a casual basis until he signed the employment agreement.
The employee was offered a job as a carpenter. There was no mention of a written employment agreement at the interview. While transporting the employee to work an 11-day-on/three-day-off roster, the employer gave the employee a written agreement to sign. He took the agreement home to look over before agreeing to sign it.
During his next trip to work, the employee was approached by the general manager, who asked for the signed agreement. The employee explained there were issues he wanted to discuss with the directors before he would sign it.
A few days later, the employee was not picked up for work by the employer, and was not able to get hold of the directors by phone. He later received a letter of dismissal and a cheque covering his final pay, holiday pay, and a week in lieu of notice. When he went to cash the cheque, it had been cancelled while the company decided whether the employee owed money for fuel charges (on the company’s fuel card).
The employee met with the general manager, who urged him to sign the employment agreement, but he refused. The company claimed that until the employment agreement was signed, he was a casual employee.
The Authority determined that the position that the employee had been offered and had accepted was a permanent, full-time position, and he had been unjustifiably dismissed.
It noted that he had suffered financial loss as a result of the dismissal and considerable hurt and humiliation, which was exacerbated by the post-dismissal behaviour of the company’s directors.
The Authority ordered the company to pay the employee $2800 in lost wages, $5000 compensation, and $1500 as contribution to the employee’s costs.
The employee’s application for a penalty to be imposed on the employer for failing to produce his wage and time records was declined by the Authority.
Alsop v Forbes & Davies Ltd—ERA, Christchurch, August 2008
Unjustified dismissal claim—unsuccessful: A warehouse assistant’s frequent absences due to a medical condition drew a final warning letter from his employer. His attendance improved but after a motorcycle accident he was off work for an extended period and could give no assurance to his employer about his eventual return. He was dismissed due to the pressure his continuing absence placed on the small company’s other staff. His claim for unjustified dismissal did not succeed.
The man was hired in February 2006 to assist two other warehouse staff in a branch of six people. By September his employer alerted him to the problems his absences—primarily due to a chronic medical condition—were causing the warehouse’s ability to meet customer service needs. The employer wrote again in October. In November it wrote a third letter headed “first and final warning”, noting the man had taken 24.5 sick days since starting.
After that letter his attendance wasn’t an issue for several months, until at the end of May 2007 he was knocked off his motorcycle on his way to work. His GP diagnosed concussion but cleared him to return to work the following day. Two days later he injured his hand and wrist while riding in a competitive motorcross event.
The company received continuing extensions of his medical certificate every 14 days until mid-July. The last certificate indicated he was due to return on 23 July. His employer spoke to him by phone several times in this period to try to ascertain a likely date that he would resume work, but no assurance was forthcoming.
On 23 July the man was expected back at work but did not turn up. The employer received another medical certificate for a further seven days. The company was approaching its busy season and the warehouse was at full stretch to meet orders. The employer dismissed him for being incapable of performing his duties.
The ERA found there had been no procedural unfairness. The employer was entitled to rely on the facts of sickness absence and medical certificates, which were not in dispute. “I am not convinced that the lack of representation or support is an essential element of procedural fairness in a case involving capacity.” The ERA found the warning letter of November 2006 was fair, as was the eventual dismissal.
Williamson v New Zealand Institute of Science & Technology— ERA, Auckland, August 2008
Unjustified constructive dismissal claim—successful: An English tutor’s complaint of unfounded allegations of racism and poor performance, which led to his resignation, was upheld by the Employment Relations Authority.
The man was employed by the institute to tutor foreign students in English. Shortly after he was employed, several students complained to the manager of the institute about the man’s tutoring. The manager sent him a letter outlining the students’ complaints, and suggesting ways to resolve the issues.
Among the complaints was the claim that students felt racially discriminated against. The man took exception to the letter and, in particular, to the claim he had racially discriminated against students. He then raised an employment relationship problem with the institute.
The institute responded by convening a meeting with the man at which he was presented with a “deed of indemnity” which was intended to end his employment contract. The man told the institute he would accept the deed on certain conditions.
The institute refused the man’s conditions. As a result, he resigned and went to the Authority to get compensation for the various allegations, particularly the allegation of racial discrimination.
The Authority found that, while the institute had not actually called the man a racist, it had said he should feel responsible for the students feeling racially discriminated against. It said the man was “naturally” very sensitive about such an allegation, and that the institute should have put the specific statements made by the students to him.
The institute did not do this. This meant the man was not able to respond to the allegations in a “meaningful way”. Furthermore, the Authority found the institute was “not interested” in any explanation, and “simply took it for granted that the students had been racially discriminated against”.
The Authority found that the fact the institute did not properly investigate the allegations was a breach of the statutory duty of good faith owed to the man. Given the nature of the allegations, this breach was a serious one and could be expected to lead to the man’s resignation.
It found the man had been unjustifiably constructively dismissed and was entitled to compensation of $2000 for loss of dignity, hurt and humiliation, and injury to his feelings. There was no order for reimbursement as the man had secured alternative work without suffering loss of income.
—Selected and written
by Miriam Bell
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