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Ross-Taylor v Chief of Defence Force—ERA, Auckland, January 2009. Unjustified dismissal claim—successful.
The Employment Relations Authority upheld a former navy doctor’s complaint of unfair dismissal, and awarded her $101,000 in the process.
After working as a doctor for the New Zealand Defence Force for nearly 12 years, the woman became concerned about being rostered on for duty in the hyperbaric unit [which treats divers with the bends]. She had no formal post-graduate qualification in the area and felt she should only work under the formal oversight of a hyperbaric specialist.
Along with one of her colleagues who felt the same way, she raised the issue with the hospital’s general manager who was, initially, sympathetic to the concerns. However, the general manager soon decided the woman’s concerns were contrived and insincere. As a result, the woman sought advice from the New Zealand Medical Council.
Based on the council’s advice, she formed the view it would be unethical to continue to work in the unit, and that continuing to do so would jeopardise her medical protection insurance. When she expressed this view to the general manager, she was told she could only vary her services by mutual agreement and that agreement was not given.
The woman became extremely distressed and unfit to work. Eventually, the matter went to mediation and then the Authority. At the Authority hearing, the defence force claimed the woman was not an employee, but rather an independent contractor and, therefore, subject to different conditions.
However, the Authority found that, while the employment relationship was apparently one of an independent contractor relationship, in substance it was an employment relationship. This meant it was “logical and consistent” to refer to the termination of the woman’s employment as a dismissal.
The Authority also found there had been a breakdown in communication between the parties involved, that there was no discussion with the woman about whether a solution to the situation could be found even though the situation was “not irretrievable”, and that there was no substantive response to the woman’s concerns from the hospital.
As a result, it found the defence force had breached its duty of good faith to the woman, that its response to the medico-legal issues raised was seriously deficient, and that its actions were not those of a fair and reasonable employer.
It said the woman had been unjustifiably dismissed by the defence force, and awarded her $81,072.19 as reimbursement for lost wages and $20,000 compensation.
Ogilvy v Warkworth Hospital Ltd—ERA, Auckland, February 2009. Unjustified disadvantage and unjustifiable constructive dismissal claims—successful.
A caregiver’s claim of unfounded allegations which led to unjustified disadvantage and then unjustified dismissal was upheld by the Employment Relations Authority.
The woman worked the nightshift with a number of other caregivers. One day she was approached by the nurse manager who advised her that one of her co-workers had made a number of serious allegations about her, and that the co-worker was refusing to work with her because she was “unsafe”. The nurse manager also said the co-worker was very angry and wanted to punch the woman in the head.
Although the two discussed some of the allegations, the nurse manager did not give the woman all the details and, in particular, she did not tell the woman that the co-worker had also made an allegation of sexual harassment against her.
The nurse manager then arranged a meeting to discuss the situation. The woman was told that the meeting was mediation. The meeting was not a success, and the co-worker ended up behaving inappropriately, but the woman did find out more about the allegations, including one about her alleged invasion of personal space [which turned out to be the sexual harassment allegation].
Several phone calls with the nurse manager followed. The woman told her that she had not been aware of the personal space issue but that, now she was, she could rectify it. However, the woman was issued with an official document detailing the allegations and told that she would be working on the dayshift, under supervision, in future, and that her pay would be reduced.
After the woman’s representative wrote to the employer, she received a reply which was, essentially, a formal warning. She was also informed that the employer had investigated the sexual harassment allegations and had upheld them.
The Authority found that the issuing of the warning was clearly unjustified. Not only had the main allegation [of sexual harassment] not been put to the woman to answer, but the behaviour complained of did not constitute sexual harassment. Furthermore, the other allegations raised had not been dealt with properly, and the employer had “fundamentally breached” its obligation to the woman to act fairly when the allegations were made.
The Authority also found that the changes to the woman’s hours constituted an inferior alternative on lesser terms and conditions. This was so significant a breach of her employment agreement that the woman was entitled to regard it as terminating her employment agreement.
As a result, the Authority found the woman had been unjustifiably disadvantaged by the issuing of a formal employment warning for sexual harassment, and had then been unjustifiably constructively dismissed. She was awarded $8000 for hurt and humiliation and $2110 for loss of wages.
Schmidt v Webster Group Ltd—ERA, Auckland, January 2009. Unjustified dismissal claim—unsuccessful.
Disagreement over whether or not an office administrator had been dismissed by the electrical engineering company she worked for was resolved by an Employment Relations Authority decision in favour of the employer.
The woman had worked for the company for about eight years before the company lost several major contracts, which resulted in a significant decline in business. As the company’s financial situation deteriorated, the employer met with the woman and her fellow office staff several times to discuss what the situation might mean for the company as well as for their employment. At one of the meetings, he told them staff reductions would be necessary.
Shortly afterwards, he told them the company was going to have to make changes to the office administration team, and that it was most likely that the woman’s job which would be affected. The employer said the company would have to reduce her hours or disestablish her role altogether. He also told her what would happen if she was made redundant, and suggested that she discuss the situation with her representative. He was adamant he did not tell the woman she had lost her job.
However, the woman claimed she was told the company no longer had a role for her, and that she was not given the option of part-time work. She had left the meeting, and then the building. She did not return to her job, although the employer attempted to contact her to tell her that her employment had not been terminated and to find out if she would be returning to work.
The only response the employer received was a letter from the woman’s representative, and then a call from the mediation service. As a result, the employer concluded the woman had resigned and paid her final pay, which included one month’s notice.
The Authority found there was no evidence that the redundancy was anything other than substantively justified, and that the woman had pre-empted the consultation process by leaving her employment and not returning to it. It also said that, from the evidence presented, it seemed highly likely that, if the woman had responded to the employer’s attempts to contact her, the company would have offered her part-time employment. This meant the woman was not unjustifiably dismissed and did not have a person grievance.
McWhinnie v Avondale Golf Club Inc—ERA, Christchurch, March 2009. Unjustified dismissal claim—successful.
The Employment Relations Authority upheld a golf club office administrator’s claim of unjustified dismissal, but declined to award her any compensation because of her contributory behaviour.
Part-way through the woman’s employment her individual employment agreement was changed, which contributed to a certain amount of confusion in regards to pay rate, hours and overtime.
However, the woman claimed she was required to work more hours than the club expected to pay for, while the club claimed she took longer to complete tasks than it expected and that she interfered in tasks which had nothing to do with her role.
An already tense situation reached boiling point when the woman injured her arm in an accident. She claimed her doctor said she was able to continue working, but the club asked her to take sick leave as she was clearly unable to carry out her usual duties. The club then found out the doctor had told her to take two weeks off work in order for the injury to heal properly.
At this point, the club president rang the woman to get the passwords necessary to access its own computer system. The woman declined to give him the passwords (because she thought they were “personal”). She said the president was rude and unpleasant to her, but the president claimed that she was rude and unpleasant and then hung up on him
As a result of the phone conversation, the club held a meeting at which a motion of no confidence was passed on the woman. She had no input into the discussion, and was completely unaware that the meeting had taken place until a disciplinary meeting a few days later.
At the disciplinary meeting she was told about the earlier decision, and then informed that she must either resign or be immediately dismissed. The woman said she was given no opportunity to respond to the allegations made against her and that she had been presented with a fait accompli.
Shortly afterwards, the club audited its accounts and discovered the woman had received overpaid and unauthorised payments totalling $32,338.14. The club said the payments involved were not authorised, while the woman said club management had impliedly agreed to the payments.
The Authority found there was no question that the woman had been unjustifiably dismissed. It said that, even if she was grossly insubordinate in the phone conversation, she was entitled to be heard before the decision was taken to dismiss her, and she was not. The decision was made without the woman even being present; in fact, she had no idea of the decision until several days later.
Furthermore, the Authority found that it would be “difficult to find a more unsatisfactory process if one tried”. Even if it had been a situation where summary dismissal might have been a prospect, fairness and reasonable dealing require that the parties deal with each other on a good faith basis and the woman’s dismissal was simply not the action of a good and fair employer.
However, the Authority also found that the woman had contributed completely to the circumstances leading to her dismissal and was, therefore, not entitled to any remedies.
Sage v I Redelman & Son (NZ) Pty Ltd—ERA, Auckland, April 2009. Unjustified dismissal claim—successful.
An unfair process resulted in the unjustified dismissal of a salesperson working in New Zealand for an Australian-owned business. When the director of the company visited from Melbourne, the employee was called into a meeting. She believed that it was a meeting to discuss a sales proposal she had been asked to prepare.
During the meeting, the director gave the employee a final written warning for poor performance, and told her that if her sales did not improve within one month, she would be dismissed.
The employee immediately challenged the warning, claiming that the targets were not achievable within the timeframe, unless the changes recommended in her sales proposal were made.
The director took this to mean that the employee wished to end the employment. He gave her one week’s notice of termination, which he considered to be by mutual agreement.
The Authority determined that the termination of employment was not procedurally fair. The two most significant errors (each one serious enough alone to render the dismissal unjustified) were the absence of warnings and the failure to provide notice of the purpose of the meeting.
The director had not put the employee on express notice that her job was in jeopardy, nor given her specific advice on what improvements were sought and in what timeframe. These actions are a minimum requirement of procedural fairness.
The employee was awarded lost wages and $8000 compensation for hurt and humiliation.
The Authority declined to impose a penalty for breach of good faith. The employee claimed that by paying her final pay by cheque and asserting that acceptance of the cheque amounted to an accord and satisfaction, the employer had tried to trick her into forfeiting her right to raise a personal grievance. The Authority noted that while it was not unreasonable for the employee to suspect this, the higher standard of proof required to claim a penalty had not been met.
—Selected and written
by Miriam Bell
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