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Woodman v Portobello Hotel & Bistro Ltd—Employment Relations Authority, Christchurch, October 2008. Unjustified disadvantage & unjustified dismissal claims—successful.
A waitress, who was suddenly dismissed from the hotel that she worked in, had her claims of unjustified disadvantage and unjustified dismissal upheld by the Employment Relations Authority.
The woman had been working at the hotel for about two and a half years when the business changed hands. She continued working for the new proprietors but, from early on, there were problems in the relationship.
Six months into the new arrangement, the restaurant manager (who was the son of one of the proprietors) decided to discontinue the previous roster system.
A fixed-day system was adopted instead, and staff were given the opportunity to select the days they preferred. However, the woman was not involved in this process. As a result, the only day left for her to work was Saturday. This meant her average weekly hours dropped from 21.55 hours a week to 9.12 hours.
Shortly afterwards, she finished her shift one night and went home, expecting to work the following weekend. Prior to the next weekend, she received a text message from the restaurant manager which said she was not required to work that Saturday.
This happened again the next week. When the woman rang the proprietors to ask why she was not needed, she was told that she was no longer employed.
Both parties had significantly different interpretations of the woman’s final night at work. The proprietors claimed she had been sullen and had walked out thus abandoning her employment. The woman, meanwhile, claimed she had been forced to redo all her work after completing it but that she had done so and then left.
The Authority found that the woman had not abandoned her employment on her final night of work and was surprised to receive the text messages telling her she was not required to work. It also said there was a total lack of process in the way the woman was dismissed, and that the proprietors had breached her employment agreement in the way they changed her shifts and reduced her hours.
The Authority found the woman had been unjustifiably disadvantaged by the proprietors’ actions, and had been unjustifiably dismissed. However, due to evidence that the witness had tried to set up a false claim of sexual harassment against the restaurant manager, her compensation was reduced. She would have been awarded $5000 for hurt and humiliation, but that was reduced to $1000.
Douglas v Godfrey Haulage Ltd—Employment Relations Authority, Auckland, May 2009. Unjustified dismissal claim—successful.
The way in which an overweight worker was dismissed by his employer was determined to be unjustified by the Employment Relations Authority. The man applied for a job as a truck driver. At the employer’s request, he underwent a pre-employment medical examination by an occupational health nurse, before being interviewed for the position.
The medical report confirmed that the man was fit for work, but noted concerns about obesity, a leg ulcer and a knee injury. It was suggested that the employer “proceed with caution”, and the following statement was made: “To be a good employee he really needs to lose weight. His right knee causes him a lot of pain which requires twice daily pain medication”.
In the event, the employer did not read the medical report until after the man had been interviewed, offered the job, and had signed the employment agreement. After a week’s training, the man worked for a full day, but on the following day he was phoned at work by the managing director (who had interviewed him for the job). The phone conversation was carried out within earshot of the man’s workmates.
The managing director asked the man how he was getting on, and he replied that he was enjoying the job and all was well. However, the managing director then told the man that he had a problem and that he should “finish up”. He told him that he had done nothing wrong, but he was too big for the job. The managing director suggested that the man should look at joining a gym and hiring a personal trainer to assist him in losing weight. He added that if the man were a member of Southern Cross, they would subsidise a stomach stapling operation.
The managing director then terminated the man’s employment, effective immediately.
The Authority first determined that the employer’s claim that the man had been on a trial period provided for by the collective agreement (which allowed a three-month probationary period), and that he could be dismissed at any time during those three months, was wrong. The employer was not entitled to terminate the man’s employment before the end of the three-month trial period. He was entitled to the whole three-month period and not one day less.
The Authority went on to state that the man was offered and accepted employment before the employer was aware of the precise details of the pre-employment medical report. His dismissal was unjustified, and the man’s distress over the termination was aggravated by the employer’s comments about losing weight and by being dismissed over the telephone.
The Authority ordered the employer to pay the man three and a half months’ wages and $4000 compensation for hurt and humiliation, loss of dignity and injury to his feelings.
Nicol v Brewcraft Ltd—Employment Relations Authority, Auckland, May 2009. Unjustified dismissal and unjustified disadvantage claim—successful.
The Employment Relations Authority determined that an employee who lost her job because she went on annual leave at very short notice was unjustifiably dismissed and unjustifiably disadvantaged. The woman worked as a production assistant. Her mother was in hospital after suffering a stroke. The woman’s sister phoned her at 3pm one workday to say that she would not be able to look after the woman’s children for the next two days because she would be with their mother in hospital.
The woman applied for annual leave that afternoon. The supervisor complained that it would be hard to replace her at such short notice, but she did not explicitly decline her leave application.
When the woman returned from her leave, she was asked to attend a disciplinary meeting in a few days’ time. The day before the meeting, the woman discovered she had not been paid for the two days’ leave, and she raised the matter with her supervisor, who reported to the director that the woman had been “aggressive” and “disparaging”.
The director told the woman to go home because she was angry, and return the next day for the disciplinary meeting. When the woman said she did not want to go home, the director said she was suspended.
At the disciplinary meeting, the woman explained the reason she needed to take leave at short notice. She also said that her supervisor had not told her that she could not take the leave. Nevertheless, the woman was dismissed on the basis that the trust and confidence in the employment relationship had been destroyed.
The Authority noted that the employer did not have a contractual right to suspend the woman and the situation did not justify her removal from the workplace. She had been unjustifiably disadvantaged by the suspension. It also determined that the woman’s failure to give the employer reasonable time to consider her application for leave should have been dealt with as a performance matter, and a warning given. Summary dismissal was not the proper response, and her dismissal was unjustified.
The Authority determined that the appropriate award was $6000 compensation for hurt and humiliation, loss of dignity and injury to feelings. However, the Authority reduced the award to $4500 because the woman had failed to be active and communicative with her employer—she did not tell her supervisor when she applied for the leave that her mother had had a stroke and she needed to care for her children.
Panoho v Whirinaki Log Transfer Ltd—Employment Relations Authority, Wellington, May 2009. Unjustified dismissal claim—successful.
An employee’s claim that his selection for redundancy amounted to an unjustified dismissal was accepted by the Employment Relations Authority. The company was experiencing financial difficulties and needed to restructure. Employees were sent a written notice that explained the need to restructure, raised the possibility of redundancies, and outlined the restructuring process. A skills matrix template was handed out to employees to be completed. The man discarded his because it did not have his name on it.
About a week later, the employees were sent an email to arrange individual meetings to “go over the upcoming company restructure”. They were invited to bring a support person. At his meeting, the man was given a redundancy notice that included the statement “Your position has now been made redundant”.
During the Authority’s investigation, the employer claimed the letter was merely a proposal for redundancy—it included the words “The company now seeks your response to the redundancy notice and proposes to meet with you on [a given date]”.
It emerged later that two employees had been ‘ring-fenced’, one because he was a truck driver and the other because she could operate the scaler. The man was not aware of this during the redundancy process, and later told the Authority that he was also able to operate the scaler.
The Authority acknowledged that the man’s redundancy was for genuine business reasons. However, his dismissal was unjustified because of the process followed by the employer. It determined the employer had failed to be open and communicative by: failing to tell the man that two employees had been ring-fenced and the reasons why; failing to inform him in advance of the purpose of the meeting where he was handed the redundancy notice; and failing to discuss redeployment or retraining before making him redundant.
The Authority ordered the employer to pay the man $2000 compensation for humiliation, loss of dignity and injury to feelings.
NZ Amalgamated Engineering, Printing and Manufacturing Union, and Fudakowski, King, Morgan and Hurring v Telstra Clear Ltd—Employment Relations Authority, Wellington, May 2009. Application for a penalty and payment of wages—partly successful.
A dispute between a union and an employer over whether the employer could limit the number of employees that it would allow to attend a union meeting was determined by the Employment Relations Authority.
The union arranged a meeting for members. The employees in question worked at a call centre, where 65 out of the 89 staff were union members.
Earlier in 2008, the company’s manager of employment relations had emailed the union’s national education administrator to ask that all written correspondence be sent directly to her.
The meeting was organised for 11 August. The union mailed a notification letter to the company. It was one of over 4000 letters to cover 25 meetings.
The notification letter sent to the company’s call centre was addressed to ‘The Manager’. It was mailed on 1 July. However, the letter did not come to the attention of anyone who recognised its significance until it was read by an HR consultant on 31 July.
The union was told that the call centre could only spare five employees on the day in question because it was a busy day of the week, recent storms had led to an increase in calls, and there was a high likelihood of staff being ill in August.
After taking advice from his delegates, the union organiser’s response to the company was that Monday was a particularly quiet day of the week at the call centre because maximum staff were in attendance. He also noted that for a previous union meeting, a full bus-load of union members attended and the company coped with that. He told the company that 23 members wanted to attend the meeting, and that the remaining staff should be sufficient to enable the company to continue its operation for the period in question.
The company’s response was that 14 days’ notice of the meeting had not been given. It maintained its position that only five staff members could attend the meeting. The union organiser replied he believed the letter had arrived at the company’s address in time, and that 23 employees attending the meeting was more than reasonable. However, he was willing to negotiate over the number.
In the event, nine employees attended the union meeting, only five of whom were paid. On that day, the grade of service provided by the call centre was the lowest for the month of August.
The Authority noted that the union should have sent the letter directly to the manager of employment relations, as she had specifically requested to be the contact person for the union. However, addressing the letter to ‘The Manager’ was not so confusing as to invalidate the notice. The letter arrived somewhere in the employer’s internal mail system in time.
The level of disruption to the business of having nine union members attend the meeting, while inconvenient, could not be said to have stopped the employer from maintaining its business. The union had left it up to individual union members whether or not they would attend the meeting, and this was evidence of the union making arrangements to ensure the business was maintained.
The employer had not raised the issue of a constraint on numbers attending union meetings in the past, so there was no reason for the union to make proposals at the time of the notice. However, once the union was on notice of a problem, it was for the parties to discuss and establish a suitable arrangement.
The Authority determined that the company must pay the four employees who had not been paid for the two hours of the meeting. However, a penalty was not appropriate because the employer had genuine business concerns about maintaining services in the absence of the union members.
—Selected and written
by Louisa Clery
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