Issue 134
Yeates v Jetstick Ltd—ERA, Auckland, September 2008
Unjustified dismissal claim—unsuccessful: Failure by an employee to sign and return an employment agreement does not negate the fixed term nature of their employment, according to the Employment Relations Authority.
The employee, who worked for the company between February and June 2007, claimed he was a permanent employee, and that he had been dismissed without reason or cause. The company director said the employee had been hired for a fixed term of employment, which related to the time needed to complete assembly work on a particular project.
Dated February 27, the agreement was not signed by the employee. He said he had not signed it because he did not consent to the fixed term as it was expressed and, therefore, he was not bound by the agreement and the company could not rely on it as justification for his dismissal.
The Authority found it was a clear and uncontested fact that the employee received the employment agreement from the company, and did not sign it. However, it said there is no requirement for an agreement to be signed by both parties before it becomes binding. It added: “An employee who deliberately evades signing the agreement or who, for whatever reason, omits to do so, cannot later take advantage of his or her failure to execute the document if the parties had intended to be bound by its terms, including a fixed term.”
The Authority also found that, while the company could be criticised for not following up on the agreement, the employee should have made it clear to the company, shortly after receiving the agreement, that he did not accept the fixed term nature of the employment. It said the duty of good faith requires both parties to employment relationships to be responsive and communicative.
For these reasons, the Authority found this was not a case where the employer had failed to put in writing the way in which the employment was going to end and the reasons for it ending in that way. Furthermore, it was satisfied the reasons themselves were genuine and based on reasonable grounds.
Therefore, the employee had not been dismissed from his employment—rather his employment came to an end by operation of the fixed term provision in his agreement. As he had not been dismissed, he did not have a claim that could succeed for unjustified dismissal.
Reddy v Mega Mags Ltd—ERA, Auckland, September 2008
Unjustified dismissal claim—successful: Contributory conduct affected the remedy amount awarded to an employee after the Employment Relations Authority upheld her complaint of unjustified dismissal.
The employee worked as a barista at the company’s store, but a new store manager became dissatisfied with her work ethic. The manager complained to the company director that the employee took extended breaks, gave drinks to friends without paying for them, failed to meet the store’s uniform code, read at the counter, and wore an iPod while serving customers. The manager said in-store surveillance cameras provided video evidence of the employee’s behaviour.
The director instructed the manager to arrange a meeting with the employee to put these concerns to her. He claimed that he told the manager to prepare a letter advising the employee of a disciplinary meeting, the reasons for it and of her right to bring a support person to it.
In the meeting the director told the employee she had been “caught on video” giving drinks to her friends. While she admitted she had done this, she said other staff did this too. The other issues were raised and the employee responded in what the director said was a “defensive” way which indicated an “attitude problem”. The employee then walked out of the meeting. A few days later she was given a letter of dismissal while working at the store counter.
However, the employee said she was never given a letter about the meeting, that she did not know it was a disciplinary meeting which could affect her employment, and that she had been “ambushed”, in the meeting by management, while she was without a support person.
The Authority found that the employee had not been provided with proper notice of the meeting, that management had then used her failure to provide considered responses as additional reasons to reach an unfavourable conclusion about her actions, and that it decided to dismiss her before giving her a proper opportunity to respond to its concerns.
Furthermore, the Authority found that these were not the actions of a fair and reasonable employer in the circumstances, and that the employee had been unjustifiable dismissed. However, it also found that her conduct had contributed to the situation, and to her dismissal. She was awarded $2000 (reduced to $1333 for contribution) compensation for hurt and humiliation.
Johnson v Supa Travel Express—ERA, Auckland, September 2008
Claims of unjustified dismissal and wage arrears—successful: The Employment Relations Authority upheld a driver’s claim that he had been unjustifiably dismissed, with wages still owing, after two major incidents occurred while he was driving passengers from Tauranga to Auckland airport.
On the day in question, the employee—who was just two weeks into his employment with the company—was told to collect some passengers and drive them to Auckland. When he went to pick the passengers up he found that he had been given the wrong address and then, when he tried to leave, his van got stuck. He rang the office, whereupon another employee picked up the passengers in another vehicle and delivered them to the employee who assumed responsibility for transporting them to Auckland in time for their plane.
Unfortunately, while they were driving to Auckland, the van’s oil light came on. The employee stopped the van but the engine had seized. He flagged down a passing motorist who took the passengers to the airport. The employee then called a towing company to get the van back to Papamoa. The tow-driver also determined that the oil problem was not the result of driver error, but due to a probable leak in the crankshaft.
When the employee got back to the office, he was abused by the company owner and made to work a second shift, which was against LTSA driving rules. He was also told the hours he had already worked would be deducted from his wages. He continued to work at the company for several weeks, but around Christmas he had an exchange with the company owner which resulted in the company owner telling him he was sick of him and did not want him to work for the company anymore.
The Authority found the owner had not carried out a full and fair investigation into the central incident(s). Neither of the incidents was put to the employee in the context of a disciplinary enquiry and there was total lack of procedural fairness in implementing the decision to dismiss.
As a result, it found the employee had been unjustifiably dismissed and had a personal grievance. It awarded the employee $517 in wage arrears, $1386 for lost wages due to the dismissal, and $3000 compensation for unjustified dismissal.
Morgan v Cotterill Security Fencing & Gates Ltd—ERA, Auckland, September 2008
Unjustified dismissal claim—successful: Mutual misunderstanding and a tense working relationship led the Employment Relations Authority to uphold a welder’s complaint of unjustified dismissal due to a meeting that went wrong.
The employee had worked for the company in the past, under a different owner, and, when he was re-employed, that owner was also working at the company. However, the former owner and the new owner fell out, which resulted in the former owner leaving the company.
The employee felt the departure of the former owner seriously impacted on the company’s expertise. He also felt concerned that the level of staffing meant the company would not be able to fulfil a number of its contracts. As a result, he wrote a letter to the owner of the company, detailing his concerns.
The owner felt the letter was negative and intimidating. She also felt the employee was not showing faith in her management and took this to mean that he did not believe she was up to her job. In her evidence to the Authority, she also said that she suffered from a depressive condition which, she implied, made the letter problematic for her.
At the same time, the employee formed the opinion that the company owner wanted, and was planning, to dismiss him—although, in its decision, the Authority said the evidence presented did not support this belief.
In response to the letter, the company owner asked the employee to a meeting. While the employee concluded that he was going to be fired, the owner said she simply wanted to discuss his concerns. because she felt intimidated, the owner got her partner to represent her at the meeting. The employee took offence at this and told the partner to “f**k off”. After a brief, angry exchange the owner told the employee he was fired, and he duly left both the premises and his employment.
The Authority found that the meeting was a flashpoint for “simmering concerns and difficulties” on the part of both parties. It found the company owner had frustrated the employee due to his belief that she would not listen to him, and that there was no formality to the organisation of the meeting in question. It also said the employee was not justified in deciding he was going to be dismissed, and that he should have accepted the owner’s choice of her partner as her spokesperson.
The Authority found the employee’s conduct was not such that the employment relationship needed to be terminated immediately, and that the owner’s actions in doing so were not justified. It found the employee’s dismissal was unjustified, and awarded him $2939 in remuneration and $3000 compensation for injury to feelings.
Fu v Rappongi Excursions—ERA, Auckland, September 2008
Unjustified dismissal claim—successful: An employee’s complaint of unjustified dismissal was upheld by the Employment Relations Authority, three years after her initial complaint to her employer.
The employee handed in her resignation after her application for extended leave (to visit her sick father in China) was refused. Her employment agreement required one month’s notice but, the week after she resigned, the roster was changed so that she would only be working graveyard’ shifts. The employee found this onerous and complained to her manager, but the roster remained unchanged. She decided the roster changes were intended to punish her for leaving.
After working a double shift in the second week, the employee felt overtired and unsafe while driving home. Her doctor who advised her to take a day’s sick leave to get a good sleep. She obtained a medical certificate and took sick leave the next day.
On her return to work, she found a note for her in the manager’s logbook. It accused her of taking sick leave without a proper reason and also said that she should finish up her employment at the end of week and, if she failed to turn up, the manager would not pay her. The employee duly completed her employment but, on receiving her pay, found she was still owed money. When she complained, her manager told her he did not care about “the bloody contract” and refused to authorise payment.
The employee raised a personal grievance with her employer, but had to go to China before mediation could be embarked on. Due to a series of problems, the mediation, which failed, did not occur till April 2008.
Once the case reached the Authority, the employer denied all of the employee’s complaints. The manager said he thought the employee had not been sick, that he considered her unreliable and decided it would be better to replace her with a more reliable employee.
However, the Authority found the manager’s actions—particularly the note that was left for the employee—were based on unfounded accusations. He had not given the employee an opportunity to provide her medical certificate before making his decision. Furthermore, the note was an inherently humiliating way of terminating her employment.
It found that the manager’s actions were not those of a fair and reasonable employer in the circumstances. For this reason, the Authority found the employee had a personal grievance for unjustified dismissal. She was awarded $2500 compensation for hurt and humiliation and $1000 costs.
—Selected and written by Miriam Bell
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