Issue 135
McCullough v Otago Sheetmetal & Engineering Ltd—ERA, Christchurch, October 2008
Unjustified constructive dismissal and unjustified disadvantage claim—successful: An office administrator’s claim of bullying and unjustified dismissal was upheld by the Employment Relations Authority, which awarded the woman $32,500 in compensation and remuneration.
The woman worked part-time for the company for about a year. There were some initial performance issues, which she acknowledges, but they were dealt with consensually. However, as time went on, the woman became increasingly anxious about the attitude of the company’s foreman towards her. She said he had “taken a dislike to her”, and that he bullied her constantly.
She approached her employer about the situation, but the matter was not dealt with. The foreman flatly denied bullying the woman, and the company claimed that it had investigated the situation and had not found any indications of bullying. The bullying continued and, eventually, the woman resigned due to stress.
The Authority found that, not only had the woman been bullied, but that the foreman had a track record as a bully [towards other staff]. It also found that the woman had done everything she reasonably could to seek help from her employer.
Furthermore, it found that the company did not deal properly with the woman’s complaint, that its investigation was flawed, and that the employer should have known the foreman’s interpersonal skills were gravely deficient.
As a result, the Authority found that the woman suffered unjustified disadvantage as a consequence of the unjustified actions of the company. This was first by the unchecked bullying by the foreman, and secondly by the failure of the employer to deal properly with her complaint and to take steps to resolve it.
The Authority also found that the woman had been unjustifiably constructively dismissed. She was awarded $7,500 for the disadvantage grievance, $12,000 for the unjustified dismissal, and $13,000 remuneration for lost wages.
Arthur D Riley & Co Ltd v Wood—Employment Court, Wellington, October 2008
Challenge to ERA ruling on unjustified dismissal claim—successful: The Employment Court found in favour of a company’s challenge to an Employment Relations Authority determination on whether or not an employee’s email behaviour constituted serious misconduct.
The woman had been dismissed, for serious misconduct, after forwarding an email that was considered inappropriate and offensive by the general manager of the company. She had been warned about her use of the internet and email on several earlier occasions, and was also aware of the company’s internet and email policy.
On this occasion, she forwarded an email entitled Eleven Most Hot People—which featured images of people of unusual appearance, nude or partially nude, and in odd poses—to nine people, including some in the company.
The general manager discovered the email in the woman’s ‘sent’ box following an audit of emails. He felt the images were not funny and were designed to cause offence. He also thought they were not appropriate within the company’s particular culture.
He instigated a disciplinary process, which culminated in the woman’s dismissal. However, the woman claimed that her conduct did not amount to serious misconduct, and that she had been unjustifiably dismissed.
While the Authority found in the woman’s favour because the company had a flawed and inconsistent approach to enforcing its internet and email policy, Employment Court judge Coral Shaw agreed with the company. She said that, while the house rules about such things had not been strictly applied, this did not mean it could not refer to those rules when pursuing the disciplinary process.
Judge Shaw also found that the company’s previous warnings to the woman were relevant, and that the decision to dismiss was one which was within the general manager’s discretion. Furthermore, she found that the general manager’s decision was one that a fair and reasonable employer would have made in the circumstances.
For the reasons she cited, Judge Shaw found that the company was justified in dismissing the woman, and set aside the Employment
Relations Authority’s determination.
Dickson v Unilever New Zealand Ltd—ERA, Wellington, October 2008
Unjustified dismissal & unjustified disadvantage claim—unsuccessful: An employee’s multiple personal grievance claims, which were connected to work-related injuries, were dismissed by the Employment Relations Authority.
The woman worked for the company for almost 13 years. From 1994 until August 2005 she was employed primarily in a stores-person role, but she also carried out packing duties at times. Over the years, she lodged a number of work-related and non-work-related injury claims with ACC. Those claims included injuries to her neck, back, arm, hand, ankle and shoulder.
In response, the company made arrangements for the woman’s rehabilitation with a transfer to a role on the packing line within the factory. However, she began to complain of further pain as a result of the work. Around this time, the woman and her partner requested that she be made redundant. No such agreement was reached because the company was committed to her rehabilitation.
Over the next 10 months, the company balanced its output needs with the woman’s rehabilitation programme. Towards the end of this period, the woman was given an indication that she would be found unfit to return to a process worker position. The company advised that it would support her in regaining full capability for a return to a process worker position.
The woman was asked to respond, but she did not. Shortly afterwards, she underwent elbow surgery. She did not return to full-time employment after the surgery.
The company then wrote to the woman terminating her employment. A-month-and-a-half later the company received a notice from the woman which raised a personal grievance around damages for personal injury and various breaches of contract. However, the company contended that the woman had not properly raised a personal grievance within the 90 day timeframe.
The Authority agreed with the company, and found that the woman had not properly raised a personal grievance within the correct timeframe. It also found that her claim for damages, due to personal injury that resulted from a transfer to packaging duties, was barred by a section of the Injury Prevention, Rehabilitation and Compensation Act.
Furthermore, the Authority found that the woman’s breach of contract claims related, in essence, to the termination of her employment.
As a result, the Authority dismissed all of the personal grievance claims.
C v D Ltd— ERA, Christchurch, September 2008
Unjustified disadvantage claim—successful: A building labourer’s claim of unjustified dismissal, that led to his resignation, was upheld by the Employment Relations Authority, which awarded him thousands of dollars compensation.
The man worked for the construction company between 2005 and 2008. Over the course of his employment, he experienced a number of incidents which he considered crass and offensive. One of these incidents involved the man being “dry humped” by the company’s managing director. Another involved the man being subjected to “genital flicking”, again by the managing director, at a company Christmas function. The man was also upset by sexual comments that were made about his daughter.
After each of these incidents the man protested and, eventually, he instructed his solicitor to write to the company complaining about the behaviour associated with each incident. The company’s response was that such behaviour was endemic within the industry and that it was not sexual anyway.
Shortly afterwards, the man was left out of a company fishing trip because “his physical safety could not be guaranteed”. This left the man feeling ostracised. The situation took its toll on him, and he ended up leaving his job due to the stress. His health suffered and he is now a sickness beneficiary.
The company claimed that the behaviour complained about was not only commonplace in the industry, but it was a “culture based on rituals of Kiwi mateship”. It also said that, once the man complained, it took immediate steps to ensure that he was no longer the recipient of the “unwelcome attentions”.
However, the Authority had no hesitation in reaching the conclusion that the man had suffered unjustified disadvantage as a consequence of a number of actions by his employer.
Furthermore, it found that it was not enough for the company to simply protect the man from the offending behaviour—because that did ostracise him further which, in turn, caused him further distress and anxiety.
The Authority said that a good and fair employer confronted with such a situation would have progressively taken steps to removed the offending behaviour from the company culture altogether, not just in relation to the man but to any and all of the company’s workforce.
It also said the company has breached its statutory obligation of good faith in a number of areas, particularly the duty to provide a safe working environment.
The man was awarded $12,500 compensation, as well as a contribution to the wages he lost as a result of the unjustified actions of the company.
Kirk v Tregoweath—ERA, Auckland, October 2008
Unjustified dismissal claim—successful: The Employment Relations Authority upheld a restaurant worker’s complaint of unjustified dismissal after her former employers did not bother to turn up for the investigation meeting.
While working with her future employer at another restaurant, the woman learned that he was planning to open a restaurant of his own. Shortly afterwards, the employer offered the woman a job as duty manager in his new restaurant. She was told she would be paid $17 an hour and that she would work from 10am-5pm. The woman accepted the job and handed in notice at the job she was in at the time.
The day before the new restaurant opened, the woman attended a staff meeting at which it became evident that another person had been appointed as duty manager. She queried this and was told that was “just the way it was”. As the woman was the sole earner for her family, she started work at the new restaurant anyway. Her rostered hours were variable and did not equate with the hours she had agreed to.
While the woman raised the matter with her employer several times, there was never a satisfactory resolution to the situation. Matters came to a head when the woman had an argument with her employer’s wife about the hours she was working. A few days later she was dismissed for serious misconduct.
The Authority found that the woman’s questioning of her hours had become a source of tension in the workplace. However, it said this was hardly surprising given the mismatch between what she had been promised and the reality. Furthermore, it found that her employers should have been willing to address the problem, which was of their own making, in good faith and with a view to resolving it. Instead they had behaved in an unfair and unreasonable way.
The Authority found that the woman had been arbitrarily and unjustifiably dismissed, and that she had not contributed to the circumstances that led to her dismissal. She was awarded $2366.40 for lost remuneration, as well as $2500 compensation and $1070 costs.
—Selected and written by Miriam Bell
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