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Fraser v Chief Executive, Department of Corrections—Employment Relations Authority, Auckland, July 2009. Claim of unjustified dismissal—unsuccessful
The Employment Relations Authority has acknowledged that in some occupations an employer may expect a particularly high standard of conduct from its employees.
Fraser was employed as a corrections officer. In 2008, he was convicted of ‘driving with excess breath alcohol, third or subsequent offence’, which carried a possible prison term. This was his fourth drink driving conviction over a 34-year period. Fraser was fined and lost his licence, but avoided a custodial sentence.
The employer’s code of conduct provided: “If you work with offenders you will be held to a particularly high standard of personal behaviour and compliance with the law as you should be a role model for offenders.”
One example of serious misconduct under the code was “Admitting to or being convicted by a court of law of an offence which would give reasonable doubt as to suitability for continued employment.”
After his conviction, Fraser was dismissed for serious misconduct. One of the key reasons was that some inmates were there for committing the same offence as Fraser had, and thus his continued employment would undermine the Department’s credibility.
Although Fraser acknowledged that his conviction was serious misconduct, for which dismissal was a possible outcome, he claimed that his circumstances made the dismissal unjustified.
He claimed, firstly, that he had been convicted of the same offence in 2003 while employed by the Department, and no disciplinary action was taken against him on that occasion. Also, he pointed out, the Department was aware that he was under personal and work stress when he was caught drink driving.
The Employment Relations Authority determined that Fraser’s dismissal was justified in the circumstances. In relation to him not being disciplined in 2003 for the same offence, the Authority accepted that the employer should not be penalised for acting generously in respect of Fraser’s previous conduct.
It also accepted that the employer should be entitled to change the way it responds to certain behaviours over a period of time and not be held to previous and potentially out-of-date decisions. Otherwise, an employer would not be able to develop its practices or, more particularly, learn from its mistakes.
The Employment Relations Authority also considered Fraser’s claim that his work-related and personal stress should have been taken into account, and determined that the employer had given this sufficient consideration when making the decision to dismiss.
Rosenberg v Air New Zealand Ltd—Employment Relations Authority, Auckland, September 2009. Claims for breach of contract and constructive dismissal—successful.
The Employment Relations Authority upheld the employee’s claim that her excessive workload was a breach of contract, and that she was constructively dismissed.
Rosenberg worked in a role that involved supervising, coaching, and mentoring a team of 18 staff. Because of constant interruptions during her work day, she worked extra hours in her own time to complete her tasks. Rosenberg complained that she was struggling to cope with her workload. Although she received understanding from her immediate managers, her workload was not reduced. Time and again, she complained of her excessive workload and the effect it was having on her. Nothing was done.
In late September 2001, Rosenberg collapsed from exhaustion. She took periods of sick leave to recover and returned to work full-time in January 2002. She continued to request help with her workload, to no avail. Rosenberg was diagnosed with panic attacks in March 2002 and again had to take time off work.
In late 2002, Rosenberg developed problems with her eyes that medical professionals determined that was caused by work stress. She took more time off work and was placed in a part-time, temporary training role while she recovered.
The company underwent a restructuring in 2004, and Rosenberg was offered the training role permanently. She was told that if she turned down that offer, she would not be entitled to redundancy compensation. Rosenberg resigned and claimed that she had been constructively dismissed.
Weighing all the medical evidence, the Employment Relations Authority concluded that Rosenberg had suffered serious harm from at least September 2001. There was no evidence of any other stressors in Rosenberg’s life other than her work. The employer had failed to take all practicable steps to ensure Rosenberg’s safety at work, and this breach caused her serious harm. The Authority determined that the risk of serious harm was foreseeable.
The Authority also determined that the employer had breached its duty of good faith in relation to Rosenberg’s redundancy. The breaches included failing to consult, failing to distinguish her fitness to work from the redundancy of her position, and offering her a role that was not reasonably similar to her normal role and then saying that she would not be entitled to redundancy compensation if she declined.
Fadheel v Waitemata District Health Board—Employment Relations Authority, Auckland, July 2009. Claim of unjustified disadvantage—successful.
The Employment Relations Authority determined that the employer did not carry out an independent and full inquiry into an employee’s complaints.
Fadheel made a complaint to her employer involving various allegations about non-promotion, harassment, criticism of her work and discrimination. The HR manager enlisted a service manager in a different section to carry out an investigation. The reason for this was, apparently, to avoid bias.
The service manager had problems contacting by phone the eight witnesses that Fadheel had named, so she emailed them. The email explained that she was investigating a complaint by Fadheel about “unfair treatment” by team leaders. It asked them whether they had “witnessed this behaviour in the workplace”.
Four of the staff members replied by email, one by phone, and the other three did not respond. None reported witnessing “unfair treatment”, but one reported seeing Fadheel upset and one described a team leader as being “rough” on another staff member. Fadheel was subsequently informed by the HR manager that the investigation’s finding was that there was no substance to her allegations.
The Employment Relations Authority determined that although Fadheel was given a fair opportunity to make her allegations, the employer did not deal with them in the thorough and independent way that a fair and reasonable employer would have in the circumstances.
Firstly, it was not an independent inquiry because the service manager had sought and received guidance on how to proceed from the HR manager throughout the investigation.
Secondly, it was not a full inquiry. The service manager made a general email query about ‘unfair treatment’ and then relied on non-specific responses to conclude that there was nothing to corroborate Fadheel’s complaints. Some of those staff members may have seen and recalled specific incidents or conversations without having perceived those events as being ‘unfair treatment’.
The attempts the service manager made to speak to the witnesses were only cursory. She did not leave telephone messages for them and did not take up the laboratory manager’s offer to help her contact them. She also made no real effort to check why three witnesses had not replied, or whether they had any relevant information.
The Authority concluded that Fadheel had been unjustifiably disadvantaged in her employment. She was entitled to compensation of $5000 for distress. However, this award was reduced by 40 percent (to $3000) for Fadheel’s contribution. Some of the evidence on which her complaints were based was weak or exaggerated (for example, she told the Authority that she was “treated like a slave many times”). Also, Fadheel’s conduct created some doubt about the true motive for her complaints, and she did not make reasonable use of the employer’s EAP programme.
John v Airways Corporation of New Zealand Ltd—Employment Relations Authority, Christchurch, July 2009. Claims of unjustified disadvantage and unjustified dismissal—unsuccessful.
Employers are only required to take action in relation to bullying allegations if they know—or ought to know—about the allegations, according to the Employment Relations Authority.
John worked as an air traffic controller. In May 2006, he reported to his doctor that he felt “mentally unwell”. The doctor diagnosed anxiety stress disorder. As a result of his illness, John’s medical certificate was revoked, which meant he could not work as an air traffic controller until he was better. However, he did not recover and was eventually dismissed on the grounds of medical incapacity in May 2008.
Over the two years, the employer received medical reports on John’s illness from two different doctors. None of the medical reports identified work as being the cause of his stress-related illness, and John himself did not communicate this to the employer. The first the company knew of John’s belief that workplace bullying had caused his stress was after he made a complaint to the Department of Labour in April 2007. A third party investigation into the allegations concluded that John was not bullied because he had never claimed directly to his employer that he had been bullied.
The Employment Relations Authority rejected John’s claims of unjustified disadvantage and unjustified dismissal. Although the company knew that John was unwell, the evidence did not establish that it ever knew his illness was caused by alleged failures on its part.
The Authority commented that the steps an employer must take under the Health and Safety in Employment Act to keep staff safe “are only those which are reasonably practicable and will depend on the particular circumstances of the role and the industry in which it is performed. Furthermore, and critically for our purposes, [employers] are only required to take steps in respect to matters they know about or ought reasonably to know about”.
Safe Air Ltd v Walker—Employment Court, Christchurch, August 2008. Claim of unjustified dismissal—unsuccessful.
An employee’s claim that he breached his employer’s email policy because he was not aware of it has been heard by the Employment Court.
Walker was employed by the company as a purchasing officer. An audit of staff email use revealed that a number of employees, including Walker, had been receiving and sending emails that the company believed breached its email policy. There were 34 employees, some of whom were managers, who had sent “inappropriate emails” using the company’s computer system.
The company identified 425 inappropriate emails that Walker had sent (including multiple recipients of the same email), many of which contained jokes, cartoons or other material which, while inappropriate, were not offensive. However, there were 26 emails of concern because they contained lewdness, nudity, genitalia and/or sex acts. Seven were described as being of particular concern.
A meeting was held with him to discuss these 26 “emails of concern”. He admitted sending the emails, but said that they were sent amidst a culture where the content was not likely to offend and was banter between colleagues. Walker also claimed that he was not familiar with the company’s email policy and that when he sent the emails, he didn’t think they were of a “bad nature”. If he had, he would not have forwarded them on.
The company claimed that Walker was given with a copy of its WE Guide when he was first employed. The guide made it clear that the company’s email facilities were not to be used for storing or sending material that was offensive in any way. It also warned that breach of these rules may result in dismissal. Walker claimed that he had never been given a copy of the guide, and that if he had, he never read it.
There was also an HR manual, with a link on the opening page of the company’s intranet, that contained an email policy similar to the one in the WE Guide. When the manual was revised earlier that year, the HR operations manager had sent an email to all staff advising them of this.
The company decided to dismiss Walker for serious misconduct. Walker claimed that his dismissal was unjustified, and that he had been subjected to disparate treatment. A key point in his defence was that he was not aware of the company’s email policy, and that when he found out about the investigation, he read the policies and immediately stopped sending inappropriate emails.
The Employment Relations Authority determined that Walker’s dismissal was unjustified. The company appealed. During cross-examination at the Employment Court, Walker admitted he would have been embarrassed if his manager had looked over his shoulder when he was viewing one of the more objectionable emails.
On the evidence, the Court held that: “It is clear that Mr Walker was aware that Safe Air had policies relating to email use and that he was bound by them. On his own evidence, it is also clear that he knew at the time that it was wrong to send the emails he sent. The policies were readily accessible to Mr Walker and readily understood by him when he looked at them on 9 September 2008. In these circumstances, I find that Mr Walker ought to have known what the policies were and that his ignorance of them was inexcusable.”
In relation to disparity of treatment, the one example used in particular by the defence was another employee, who had forwarded to Walker five out of the seven emails of most concern, yet was only given a final warning. The Court noted that the two emails regarded by the employer as being of the most serious concern were not sent by the co-worker in question. Also, the co-worker had sent only nine of the 26 emails of concern sent by Walker and had only sent a total of 74 inappropriate emails compared to the 425 sent by Walker. The Court concluded that Walker’s dismissal was justified.
—Selected and written
by Louisa Clery
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