|
The New Zealand Educational Institute Te Riu Roa v Secretary for Education—Employment Relations Authority, Wellington. Claim of unlawful preference—unsuccessful.
The Employment Relations Authority did not agree with a union that its members were entitled to be paid the same level of bonus as non-union members. Union members were employed under a collective agreement, while non-union members were employed under individual employment agreements that were all effectively identical.
The collective agreement provided a remuneration system consisting of a five-step salary band. The agreement provided a process for progressing up the band and provided that salaries could not be reduced. There was no provision for lump sum performance payments because the union was against a performance pay system.
The remuneration system was different for those on individual agreements. The salary band range was significantly greater than under the collective agreement, and provided total remuneration where fixed remuneration formed part of the employee’s pay combined with a lump sum performance payment based on their performance rating. There was no guarantee of a pay increase each year, or that salaries would not be reduced.
After the annual salary review, both union and non-union staff were given a bonus payment. However, the amount of the payment given to non-union members was significantly higher than those awarded to union members.
The Authority determined there were two different remuneration systems in place, and these were terms and conditions of employment. Whether one was better or worse than the other was not discernible because of the differences between them.
It stated that the bonus payments to non-union members were enforceable lump sum performance payments, while those given to union members were ex-gratia bonuses. It was open to the employer to make payments on an ex-gratia basis. However, there was no unlawful preference, given that different remuneration systems applied to the two groups.
Masonry Design Solutions Ltd v Bettany—Employment Court, Auckland, August 2009. Claim for unjustified dismissal/counterclaim for damages for poor workmanship—unsuccessful and successful respectively.
An employer who had to spend time correcting an employee’s work after he was dismissed has been awarded damages by the Employment Court. The employee was a CAD draughtsperson, employed on a three-month trial period. The employment agreement required the employee to perform his duties with all reasonable skill and diligence. The agreement also required the employee to devote the whole of his time, attention and abilities in carrying out his duties.
A reasonable level of personal use of internet and email was allowed by the agreement, so long as it did not interfere with the employee’s duties or obligations. Included in the list of examples of serious misconduct which could result in summary dismissal was “serious or repeated failure to follow a reasonable instruction”.
The employee was dismissed at the end of his trial period for being continually late for work, and often absent altogether, with no explanation or authorisation, despite being repeatedly warned about his timekeeping. He was also dismissed for his extensive personal use of the employer’s email and internet systems (180 instances of non-work access of websites and electronic transactions were recorded in one day, for example). When questioned about his use, the employee admitted that he had developed some “bad habits” at work.
The Employment Relations Authority determined that the process for dismissing the employee was flawed because the employer did not warn him that a failure to improve would put his job in jeopardy. The Authority also rejected the company’s counterclaim for damages for breach of contract for the cost to the employer of fixing the mistakes the employee had made in his work because the Authority was not satisfied that the employee had realised his work was so bad it would need to be redone completely. The company appealed.
The Employment Court held that the employee’s dismissal was justified. A fair and reasonable employer would have had significant concerns about the employee’s failure to comply with his employment agreement, with no prospect of real improvement.
The company had made the employee aware that his employment would be extended beyond the trial period only if he met the employer’s reasonable conditions. In the area of time keeping, the Court held that the employee clearly did not do so. His serious and repeated failure to follow reasonable instructions to begin work on time amounted to serious misconduct under his employment agreement.
In relation to the employee’s private use of email and the internet, although there was no definition of ‘reasonable use’ in the employment agreement, the employee effectively admitted his use was unreasonable and excessive when he said he had developed bad habits.
The Court then considered the company’s counterclaim for loss from poor workmanship. It agreed that it was probably the employee’s almost constant distraction with his personal business on the internet that caused him to fail to meet the required work standards. It held that it was reasonable and foreseeable, including to the employee, that his work would have to be substantially amended because of the number and important nature of the errors, and that this would be at a cost the employer.
The Court held that “these errors were attributable not to lack of knowledge or other innocent explanation. Rather, they are attributable to carelessness, inattention to detail, and otherwise for reasons that amounted to breaches by Mr Bettany of his contractual requirements to perform his duty with all reasonable skill and diligence … and to devote during his normal working hours the whole of his time, attention, and abilities in carrying out his duties”.
The Court ordered the employee to reimburse the company $12,000 for 100 hours of work for the company’s senior architectural draughtsman to bring his drawings up to standard. During this time, the draughtsman was unavailable to the company to undertake productive and remunerative work at his hourly charge out rate of $120.
Jinkinson v Oceana Gold (NZ) Ltd—Employment Court, Christchurch, August 2008. Application for determination of permanent employment—successful.
An employee who was made redundant after supposedly being employed on a casual basis has been told by the Employment Court that she is entitled to raise a personal grievance.
The employment agreement stated that the employee was employed on a casual basis and that there was no guarantee of any hours. It provided that the employee was not permitted to engage in any other business activities without the consent of the company. She had to give two weeks’ notice, where practical, if she wished to make herself unavailable for casual work.
Over a period of 19 months, the employee worked a regular pattern, was given performance reviews, bonuses, and was promoted. Then she was made redundant. The employee wished to raise a personal grievance for unjustified dismissal. The Employment Relations Authority determined that she was unable to do so because she only worked ‘as and when required’ and so was not a permanent employee.
The Employment Court said that although the description of the employee’s employment as casual should be taken into account, the decision on whether there was a contract of service must be based on the real nature of the relationship between the parties.
There was no doubt that the woman was an employee of the company while she was working. The question was the extent to which she was an employee between shifts. Throughout her employment with the company, the employee worked every week (except when on leave) and averaged more than 45 hours’ work per week. She was allocated shifts through a roster. The pattern of her work was consistent and highly predictable. On the basis of these factors, the employee had a legitimate expectation of continuing employment, arising within a matter of months after she began working for the company.
If rosters were issued a week or more prior to the date on which they first became effective, this alone would have rendered her an employee at all times. The roster constituted an offer of work for each shift. Once accepted by the woman, she became a ‘person intending to work’ and therefore an ‘employee’ for the purposes of the Employment Relations Act 2000.
The effect of the parties’ conduct was to rescind the original agreement and replace it with an agreement for ongoing employment, despite a clause in the written agreement stating it could only be varied by mutual agreement and in writing. The employee was entitled to raise a personal grievance under the Employment Relations Act 2000.
The New Zealand Dairy Workers Union (Inc) v Open Country Cheese Company Ltd—Employment Relations Authority, Auckland, August 2009. Claim of unlawful refusal of union access to the workplace—successful.
The Employment Relations Authority has determined that a cheese company’s refusal to allow a union access to its factory was unreasonable.
A union organiser phoned the company’s general manager to advise him that she would be accessing the workplace to speak to workers and recruit union members. The general manager wrote back, outlining the requirements for access, which included reasonable notice, proof of identity, health and safety induction, being accompanied by an authorised person while in the workplace, and prohibiting access to critical hygiene areas.
The union organiser attempted to access the workplace three times. The first time she was denied access because the general manager wasn’t there. On the following two occasions the union organiser was denied access because the union had commenced legal proceedings against the company because access had been denied.
The Employment Relations Authority determined that the general manager’s absence was not a reasonable ground upon which to deny access. There was no evidence that it was the company’s normal business operations for the general manager to receive all visitors to the site.
It was also unreasonable to deny the union access on the following two occasions. The issuing of legal proceedings is not a reasonable ground upon which to deny access. The Authority ordered the company to pay a penalty of $1000 to the Crown under section 25 of the Employment Relations Act 2000.
The parties asked the Authority to provide guidelines for the union’s future access to the site. In relation to the company’s requirement for reasonable written notice, reporting to the front desk, and providing proof of identity, the Authority said that the good faith obligations under the Employment Relations Act provided a mechanism to establish the identity and purpose of an accessing party. As the company’s operations did not require prior advice as part of its normal operations, then its requirements of the union were not reasonable.
In relation to prohibiting access to critical hygiene areas, the Authority said that the company would not be able to deny access to these areas if access was reasonable. It would be unreasonable for the company to refuse to provide the union with the practical necessaries to safely access the critical hygiene areas, eg, safety equipment, health and safety training.
The requirement for the union to be accompanied by an authorised person depended on who accompanied the union representative, as it may impact on the efficacy of access so that it would effectively be a denial.
Askin v Gulati and Avinash Enterprises Ltd—Employment Relations Authority, Christchurch, August 2009. Claim of sexual harassment and constructive dismissal—partly successful
The Employment Relations Authority has determined that unilaterally reducing an employee’s pay was a very serious breach of the employer’s duty.
The employee worked for the company for around two months before resigning. She raised a personal grievance in relation to sexual harassment and a drop in her pay, as well as other roster and pay-related matters (such as a lack of pay slips).
In terms of sexual harassment, the owner of the business sent the employee a text message and phoned her to ask her to go for a drive in his car. She refused.
The employee’s pay was subsequently reduced from $12.50 an hour to $9 an hour. The employee also claimed that she was subjected to unwelcome touching and kissing by a fellow employee. She complained to the business owner and the behaviour stopped.
The Employment Relations Authority determined that the employee’s claim did not amount to sexual harassment according to the three definitions given under section 108 of the Employment Relations Act 2000.
The owner’s text message and phone call did not contain any implied or overt threats about the employee’s employment. Although the owner’s advances were unwelcome, they were not of such a nature, nor were they repeated, so as to have a detrimental effect. Finally, when the employee complained about the other employee’s behaviour, it did not happen again.
In relation to the employee’s pay, the Authority determined that the employer was not entitled to unilaterally reduce her wages, regardless of his claim that he had done so because the standard of her work had deteriorated. This was a very serious breach of the employer’s obligations and it was reasonably foreseeable that the employee would resign.
The employee was entitled to arrears of wages and holiday pay, and $2500 compensation for stress.
The Authority commented that the owner of the business was fortunate that the employee had not instructed an experienced representative to pursue this matter for her.
There were a number of breaches of the law for which penalties could have been sought and that the Authority probably would have ordered. These included a failure to provide a written employment agreement; a failure to keep proper time and wage records; a failure to pay holiday pay; and breach of the employment agreement by reducing the employee’s pay.
—Selected and written
by Louisa Clery
Top of Page |
