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Marfell v AFFCO NZ Ltd—ERA, Auckland, January 2009
Unjustified dismissal claim—unsuccessful: Finding a correct definition of the word “possession” preoccupied the Employment Relations Authority before they decided not to uphold an employee’s complaint of unjustified dismissal.
During a random drug search of employees’ cars, some cannabis and several methamphetamine bags were found in the woman’s car and handbag. At the time of the search the woman admitted possession of the cannabis, but said she had no knowledge of the methamphetamine.
At a disciplinary meeting the next day, the woman claimed she had just retrieved the car from a friend she had lent it to, and that all of the drug paraphernalia found in the car must have belonged to the friend. The company felt the cannabis alone amounted to possession of illegal drugs on its premises, and dismissed the woman under its zero tolerance policy.
The woman subsequently claimed the dismissal was unjustified because a) she did not make the admission relied on by the company and b) she did not know that either the tin or the cannabis inside it were in her car. She said the company unfairly applied its zero tolerance policy rather than considering her explanation.
However, the Authority found that the woman’s evidence was inconsistent, as opposed to the evidence of the company management which was consistent. It found that, on balance, the company reasonably concluded that it was “more likely than not” that the woman did know the cannabis was in her car that day and that, consequently, she was in “possession” of it.
The Authority also found the zero tolerance policy was not operated in a blanket or automatic manner, and that company management had critically assessed the evidence available to them and had reached an honest conclusion that the woman had committed an act of serious misconduct. It found it was, therefore, not unreasonable for the company to decline to review the decision to dismiss the woman.
The Authority said the company’s decision to dismiss the woman was one that a fair and reasonable employer would have made in all the circumstances at that time. For that reason, the woman’s personal grievance claim was dismissed.
Barwick v Leaderbrand Produce Ltd—ERA, Wellington, January 2009
Unjustified dismissal claim—successful: A supervisor’s failure to ask an employee how much produce he was taking for personal use led the Employment Relations Authority to find the supervisor was not entitled to any compensation—even though it upheld his claim of unjustified dismissal.
The man, who had been employed by the produce company for 10 years, was approached by another worker who asked his permission to take some lettuce home. As the employee’s supervisor, he gave his permission but failed to ask how much lettuce the worker planned to take.
Shortly afterwards, the company’s owner discovered the worker putting two large sackfuls of lettuce into his car and called the police. The police decided not to do anything further when it was established the employee had received permission from the supervisor, who acknowledged giving his permission.
Later that day, the man was called to a fact-finding meeting with senior management. After the meeting he was given a letter which informed him that the company considered his action [in giving permission to the other worker to take the lettuce] to be “over-reaching his authority” and theft, which constituted serious misconduct. Another meeting was held several days later and, at this meeting, the company decided he was lying. The man was then dismissed as the company said he had breached its trust and confidence in the working relationship.
The Authority found there was not enough evidence for the company to establish many of its allegations against the man—including that he was “complicit in aiding and abetting theft”. It also found the disciplinary and investigation process had not been fair, and that the allegation of “over-reaching authority” did not constitute serious misconduct under the terms and conditions of the man’s employment agreement.
However, the Authority also found the man’s failure to ask how much lettuce the worker had wanted to take left him open to the company’s allegations, and that he should have referred the request to management for approval. Furthermore, the Authority assessed the man’s contribution to the situation at 100 percent.
As a result, it found that the man had been unjustifiably dismissed and had a personal grievance, but he was not awarded any lost wages or compensation.
Mitchell v Blue Star Print Group (NZ) Ltd—Employment Court, Wellington, December 2008
Unjustified constructive dismissal claim—successful: Significant breaches of good faith, on the part of an employer, resulted in the Employment Court overturning an Employment Relations Authority decision on a guillotine operator’s complaint of unjustified constructive dismissal.
After many years working for the company, a “reorganisation” of the man’s team led to a major increase in his workload. Although he complained about this at the time, the general manager denied the changes resulted in a heavier workload. The man, who was regarded as a diligent worker, also rarely took tea breaks and often cut jobs left over from the night shift.
Several months after the reorganisation, the man complained to the health and safety manager that he had a sore chest and arms. Although he filled out an injury report, the company did not follow it up properly. Not long after the man returned from sick leave, he suffered another injury. He filled out another accident report, and applied for coverage from ACC.
While ACC acknowledged his claim was work-related and began an investigation, the company still made no changes to his workload. The health and safety manager had not reported the injury as a serious harm injury, and the general manager had formed the opinion that the man’s injury was due to non-work-related activities.
Shortly afterwards, the man wrote a letter of complaint to the company. He outlined his problems with his workload and the resulting stress. The company did nothing in response. Three weeks later, he was hospitalised after blacking out at work. His doctor asked the company to work with ACC to alleviate the strain on him, but the company informed ACC that the man’s health problems were due to non-work-related activities. As a result, ACC declined the man’s claim for cover—even though his doctor had diagnosed him with biceps tendonitis in both arms and the chest wall, and serious depression.
An OSH investigation revealed serious issues at the company. It recommended a range of corrective actions. While the company made these changes, it was too late for the man who resigned and embarked on a personal grievance claim immediately. He also sought a review of the ACC decision. During the review the man produced evidence proving his health problems were directly related to his work. His ACC cover was reinstated, with backpay.
When the man’s case reached the Authority, it found in favour of the company so he went to the Employment Court where Judge Shaw found that it was “beyond doubt” that his health problems were caused by his workplace. She also found that the company had breached its obligations under both the Employment Relations Act and the Health & Safety in Employment Act, and that its failure to support the man, or act on his complaints, had directly led to his resignation.
Furthermore, Judge Shaw found that the combination of the man’s verbal complaints, two formal accident reports, and letter of complaint were sufficient to put the company on notice that his continuing employment was at serious risk due to his health problems.
She said the company did not act fairly and reasonably towards him, and that he had been constructively dismissed. She awarded him $10,000 compensation for hurt and humiliation.
Stokes v Imex Imports Ltd—ERA, Auckland, November 2008
Unjustified constructive dismissal and unjustified disadvantage claim—partially successful: A business development manager’s claims of unjustified disadvantage and unjustified constructive dismissal were partially upheld by the Employment Relations Authority.
The man had been working at the company for six months when he received a written warning about his performance. While he accepted that his employer had raised the issues with him before issuing the warning, he said he had not realised the matter was being elevated to a disciplinary issue and he felt the development undermined him. He added that the behaviour of a newly-appointed sales representative also undermined his work performance.
Meanwhile, the employer said it had made its expectations regarding the man’s performance clear and that there had been a written exchange [on the matter] between them. It also said the sales representative was necessary and that staff simply had to get along.
After the man received the warning, a meeting was held at which the discussion became heated. The man ended up resigning with immediate effect. He claimed his resignation was an unjustified constructive dismissal. The employer said it was not, because the meeting had only been intended to discuss the warning.
The Authority found that the written warning was unjustified because the employer had not notified the man that it was escalating the performance issues to a disciplinary process. It awarded the man $500 as compensation.
However, the Authority found the man’s resignation did not amount to an unjustified constructive dismissal. It said the meeting was intended to discuss the warning, not termination of employment, and that the man should have taken the opportunity to raise his concerns about the warning. As he did not, his resignation was not reasonably foreseeable to his employer.
Bush v Marlborough Lines Ltd—ERA, Christchurch, December 2008
Unjustified dismissal claim—successful: Procedural mistakes led the Employment Relations Authority to uphold an arborist’s complaint of unjustified dismissal—which resulted from a supposedly positive drug test.
The man had only been employed by the company for a short time when he turned up for work one morning smelling of alcohol. He was given a warning and told that a repeat performance would lead to termination of his employment. A month later, his supervisor reported that the man’s performance that day “didn’t seem to be with it”. As a result, he was asked to take a drug test.
The drug test result was positive for an amphetamine-class drug and the company, which also took into account the man’s previous warning, decided to dismiss him. At a meeting to discuss the situation, the man denied he had ever taken amphetamines and said that he had been taking a cold medication which included pseudoephedrine. He offered to take a second drug test. The company ignored this offer, and dismissed him, but he took another drug test anyway. Its result was negative, and the man complained that he had been unfairly dismissed.
The Authority found that, while the company had well-grounded concerns about whether or not the man could safely perform the tasks required of him, it had not carried out the testing process in accordance with the terms set out in its employment agreement. It also found that the company had overreacted to the initial test result, had moved to dismiss the man without considering any alternatives and, when the second test proved clear, had declined to reconsider its position.
Furthermore, the Authority found there was no evidence to support the man had ever taken amphetamines, and that his taking of a cold medication for a genuine medical condition did not constitute serious misconduct. However, it did say that the earlier issues surrounding his performance meant he had to take some responsibility for the circumstances surrounding his dismissal.
The Authority found that the process undertaken by the employer was inadequate and unduly hasty, and that the man’s dismissal was substantively unjustified. It awarded the man $10,076 in lost income and $5000 compensation—reduced by 20 percent to reflect his contribution to the situation.
—Selected and written
by Miriam Bell
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