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McLeay v Radius Residential Care Ltd—ERA, Wellington, October 2008
Unjustified disadvantage claim—successful: The Employment Relations Authority upheld a caregiver’s claim of unjustified disadvantage, due to procedural and communication failings on the part of the employer.
While the woman was employed as a manager for one of the company’s branches, she received a letter which advised her that the company had serious concerns with regard to her performance and conduct that could result in disciplinary action. The letter listed the three concerns, but the woman sought and received further clarification of them.
At, and following, the related disciplinary meeting, the woman provided the company with only written responses to its concerns. The company did not consider that the woman’s responses were adequate, particularly as it claimed the woman was aware of the “precarious financial situation of the company”. It also disputed the woman’s claim that her employment instructions were not clear.
The company then issued the woman with a final warning, after which it sent her an action plan setting out identified goals and actions. Although the woman clarified aspects of the plan, she also filed a grievance with the company.
However, the Authority found the final warning was not preceded by any earlier warning—despite the relevant provisions in the company’s employee handbook. Although the company claimed performance issues had been raised with the woman and it was, therefore, justified in issuing a final warning, the Authority disagreed.
It found that the company’s concerns about the woman’s performance and conduct were not clearly and expressly set out by the company. Nor had the company met its obligation to be active, constructive, responsive and communicative.
As a result, the Authority found the company’s action in issuing a final warning was unjustified, and constituted unjustified disadvantage. It accepted the company had legitimate reasons for its concerns over the woman’s performance, but found that it had stepped beyond the usual disciplinary process it had set for itself.
The Authority awarded the woman $4000 compensation for humiliation, but reduced the award by 25 percent, to $3000, for contributory behaviour.
Bogun v Bill Davis t/a Outdoor Sportsworld—ERA, Auckland, October 2008
Unjustified dismissal claim—unsuccessful: Refusing to work the occasional weekend, despite a contractual obligation to do so, led to the Employment Relations Authority overturning a retail assistant’s claim of unjustified dismissal.
When the woman started her job, she and her employer (verbally) agreed that she would work five days a week and one Saturday out of every three. The shop’s employees were not required to work on Sundays or on statutory holidays.
After several months of employment, the woman and one of her co-workers came to an agreement that the co-worker would work Saturdays for the woman. The co-worker said that she agreed to do this because the woman had health problems, but that the arrangement was never intended to be permanent because she was leaving the shop a couple of months later. The woman misunderstood this and believed the arrangement was open-ended.
Just before the shop’s busiest annual period, the employer held a meeting, for staff, to discuss staff responsibilities before and during the busy period. At the meeting, the woman said she would not be working weekends. The employer was surprised by this, and asked to see the woman in his office to discuss the issue.
The discussion turned into an argument, which ended with the woman leaving the shop and slamming the door behind her. Several days later, the woman returned to the shop, with her uniform shirts. Because of the circumstances surrounding her departure, the woman asked the employer if they could talk. The employer said there was no point if she would not work Saturdays, which the woman interpreted as dismissal.
However, the employer said he did not dismiss the woman, and he also denied he had used any combination of language or actions to convey to her that she was dismissed. He said the situation left him in “a hell of a predicament”.
The Authority found that, when the woman stated that she would not work weekends, the employer said that she had to and that it was a contractual requirement which she had originally agreed to. It also found that the woman was infuriated by this and left the shop is a state of high dudgeon. Furthermore, the Authority found the employer had simply been restating this position when he later told the woman that there no point in talking if she would not work weekends.
For these reasons, the Authority found in favour of the employer, and determined that the woman had not been dismissed from her employment. However, it also found that, as the woman had not been provided with a written contract, the employer was in breach of the act and had to pay a penalty to the Crown.
Casse v Chief Executive, Department of Labour—ERA, Auckland, October 2008
Unjustified disadvantage claim—successful: A health and safety inspector’s complaint of unjustified disadvantage was upheld by the Employment Relations Authority – despite the fact the man’s behaviour contributed to his situation.
The man has been employed by the Department of Labour for six years. In 2006, the department underwent a major restructuring programme which resulted in all its separate business units being combined into a new regional business structure. As part of this process, area service managers were appointed.
The man’s new area service manager embarked on a process of identifying, and then establishing, the standards of behaviour required in the workplace. The man objected to this on the grounds that the employees were adults, not children. At a staff meeting, the man swore at the service manager. Shortly afterwards, he walked out of a staff workshop, after challenging the service manager and the need for the workshop.
As a result of his action, the man received a final written warning. He claimed this was not warranted and had disadvantaged his employment with the department. However, the department denied these claims, and said the man’s behaviour warranted this disciplinary action.
The Authority found that, while the man’s behaviour did constitute misconduct, the service manager had elevated that misconduct to serious misconduct. As a result, the man was given a final warning, which could result in dismissal. It also found that the service manager, who was involved in the investigation into the man’s behaviour, was unable to give the matter the objective consideration it deserved.
The Authority said that an employer acting fairly and reasonably, in all the circumstances of the case, would not have escalated matters, during the disciplinary process, from misconduct to serious misconduct. Rather the man would have been issued with an oral or first written warning. The fact he was given a final warning made the man’s employment more tenuous as he was essentially only one step away from dismissal.
As a result, the Authority found that the man had suffered an unjustifiable disadvantage in his employment—due to an unjustifiable act on the part of the department—and had a genuine personal grievance. The Authority awarded the man $3000, but reduced that amount by 50 percent, to $1500, because of the man’s contributory behaviour.
Warren v Lincoln Food Warehouse—ERA, Auckland, October 2008
Unjustified dismissal claim—successful: The Employment Relations Authority upheld a butcher’s complaint of unfair dismissal, due to a wrist injury, because his employer’s decision to dismiss him was not justified.
After working at the company for three years, the man badly injured his wrist. The injury left him unable to work for a period of time. His manager did not want the man to return to work until he was medically cleared as fully fit for his usual tasks and hours, and declined light duties proposed by a workplace assessor.
The man returned to work, but the injury reoccurred. After some further time off, he began a graduated return-to-work trial during which ACC continued to pay him earnings-related compensation. At this point, his employer said that he must be able to return to carrying out his full normal hours and duties in two months time.
When the set time was approaching, the man was re-examined by his specialist who “reluctantly” gave him clearance to return to full-time duties. Shortly afterwards, the man suffered another recurrence of the injury. His specialist was away, so he got a medical certificate from his doctor.
His employer thought the medical information was “inconsistent and inconclusive”, and dismissed the man for incapacity. The company said its decision was reasonable, given the circumstances, and “in the interests of the business”.
However, the Authority found that the company’s refusal to let the man start a graduated return-to-work programme, or to arrange light duties sooner after his initial injury, was likely to have some impact on the “failure” of the later ACC-funded work trial.
It also found that the deadline set for the man’s return to full duties and hours was arbitrary; that the company did not take steps to get further and/or independent information about the man’s injury; and that the company’s evidence about supposed additional business costs, attributable to the man’s absence was unconvincing.
The Authority found the actions of the company were not those of a fair and reasonable employer, and that the man had been unjustifiably dismissed. It ordered the company to reinstate the man to his job, and awarded him three months ordinary remuneration in lost wages and $3000 compensation for loss of dignity and injury to his feelings.
Neil v Lammas—ERA, Auckland, October 2008
Unjustified dismissal claim—successful: Abusive behaviour from his employer led to a farm manager’s complaint of unjustified dismissal, which was upheld by the Employment Relations Authority.
The man was offered the farm manager job, by the employer, several times before he accepted it. His acceptance of the job meant that he had to relocate from the South Island to the North Island. However, he was promised a salary of $55,000 per annum for working 50 to 60 hours a week. He was also told he would be provided with accommodation on the farm.
About two weeks after he started work, he witnessed his employer assaulting another farm worker. He thought the worker would report the assault to the police, and was surprised that he did not. The next day the man went to get the cows in for milking. Unfortunately, the cows had managed to get into other paddocks. He realised he needed assistance and went to get his employer.
At this point, the employer abused the man and criticised his ability to do the work required. The man said the abuse was unwarranted and intimidating. Given the assault he had witnessed the day before, he became concerned for his safety. The employer then told him to get out of the farm accommodation within two days.
The man thought this constituted dismissal and left the farm immediately. He later, unsuccessfully, tried to resolve the situation but was abused again. He did not find a new job for another month.
The Authority found that the employer’s behaviour was not that of a fair and reasonable employer, and did constitute dismissal. It said that the burden rested with the employer to show the dismissal was justified but, as the employer did not respond to the Authority’s approaches, he had failed in this.
The man was awarded $3846.15 for lost remuneration, $480 for lost accommodation, and $3000 compensation.
—Selected and written
by Miriam Bell
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