Issue 148
National Distribution Union Inc v Capital and Coast District Health Board—Employment Court, Wellington, January 2010. Application for determination on long service leave entitlement—successful.
The purpose of providing long service leave is to reward employees for their long service. The Employment Court took this into account when deciding whether the long service leave clause in question entitled employees to five weeks’ leave per year.
The parties disputed whether the wording of the collective agreement entitled employees who qualified to four or five weeks leave. It provided that on the anniversary of the commencement of their employment, employees were entitled to annual holidays of three weeks (four weeks from 1 April 2007) calculated in accordance with the Holiday Act 2003. A long service clause stated: “After the completion of seven years’ continuous service the employee will be entitled to an additional week of annual holiday for the seventh year and succeeding years.”
The Court noted that long service gives employees security of employment and they generally work more efficiently. Employers reduce their costs by not having to replace the employees. It added that “It goes without saying that to be effective as a reward or incentive, such an arrangement must differentiate the relevant terms and conditions of a long-serving employee from those of an employee who has not yet attained the status”.
The Court said that in this case, the purpose of both annual leave and long service leave was to allow the employee rest and recreation. However, regardless of whether the additional leave was a reward for long service or an incentive to remain in employment—or both—the clear intention was that employees with more than seven years of service was to have one week’s holiday more than those employees yet to attain that longevity.
The union’s interpretation—that employees with long service leave were entitled to five weeks’ paid holidays per year—was correct.
Schneider v BBX Distribution Pty Ltd (now Barter Management (NZ) Ltd)—Employment Relations Authority, Christchurch, January 2010. Claim for unjustified dismissal—successful.
Although the employment in this case pre-dated the new 90-day trial period provisions, the Employment Relations Authority has made an interesting observation that even on such a trial period, the employee is entitled to the opportunity to comment.
The employee began her employment in an administration role in January 2009. Her employment agreement included a three-month probationary period that allowed termination on one day’s notice by either party. The employee enjoyed the first few weeks of her job, but after that she felt she was being ignored, unsupported and refused training. In March 2009, after a performance review, she was dismissed over the phone by the company’s New Zealand manager. No reason was given for her dismissal and she was handed a letter confirming her dismissal immediately after the phone call.
In pointing out that employment agreement pre-dated sections 67A and 67B of the Employment Relations Act 2000 (providing for 90-day trial periods) coming into force, the Authority stated that “The 90-day trial period does not exempt an employer from the duty of providing the opportunity for an employee to be heard when dismissal is contemplated.”
The Authority determined that this was a “classic case of fait accompli”. The employee had not been given the opportunity to state her case before the decision was made to dismiss her. The dismissal was predetermined and there was a total lack of good faith or fair process.
The Authority concluded that the employee was unjustifiably dismissed, and that she was unjustifiably disadvantaged in her employment by the failure of her employer to provide adequate training in her role.
The company was ordered to pay the employee 13 weeks’ lost remuneration and $9000 compensation for hurt and humiliation.
C v AL Ltd—Employment Relations Authority, Auckland, January 2010. Claim for unjustified dismissal—unsuccessful.
The Employment Relations Authority has determined that an employee’s conduct outside the workplace was so directly linked with his job that the employer was justified in dismissing him.
C was employed as an airline pilot. There was an unplanned overnight stopover, and C, the first officer and a flight attendant consumed beer and wine together. The next morning, the flight attendant made a police complaint that, while she was under the influence of alcohol, one or both of her co-workers had committed a serious sexual offence against her.
C was suspended while an inquiry was carried out. He was given the opportunity to comment on the intention to suspend him, but declined on the basis that he had a right to silence (as was his stance to the police at the beginning of the investigation).
The employer ultimately concluded that C had had sex with the flight attendant without her consent (C claimed that it was consensual) and that he had caused a safety risk by consuming alcohol. C was dismissed for serious misconduct.
The Employment Relations Authority determined that C’s suspension was justified. Although C remained on suspension for a year while his employer investigated, any disadvantage that arose from the delay was C’s responsibility because he chose not to engage with the employer when offered the opportunity at the beginning.
The Authority determined that C’s dismissal was also justified. It was fair and reasonable for the employer to conclude that C had committed sexual harassment. Even though the drinking and sexual harassment had occurred away from the workplace, there was a direct link with C’s conduct and the specialised nature of his employment.
The Authority rejected C’s claim of disparity of treatment—the first officer was also subject to disciplinary action, but not dismissal. C was entrusted with a command position and as such he was required to set an example to the other staff.
Air Nelson Ltd v The New Zealand Amalgamated Engineering, Printing and Manufacturing Union Inc—Supreme Court, May 2010. Claim of breach of section 97—unsuccessful.
The Supreme Court has ruled that if there is a departure from the normal pattern of integration of work when non-striking workers are performing the work of striking ones, this may indicate a breach of the Employment Relations Act 2000.
As part of its airline business, the company carried out line maintenance on aircraft between flights. This work was mainly carried out by its employees, but when there was more work than the employees could handle, the company brought in contract engineers to help out. The use of these contractors was regular, but made up only one or two percent of the line maintenance work carried out overall.
The line maintenance employees went on strike, during which the contract engineers carried out line maintenance on an aircraft. The union claimed that this breached section 97 of the Employment Relations Act 2000, which restricts the ability of employers to employ other people to carry out the work of striking workers.
The Employment Court held that the limited amount of line maintenance that was carried out could properly be regarded as the contract engineers’ own work, rather than that of the striking workers.
The Court of Appeal, however, overturned the Employment Court’s ruling. The Court of Appeal held that “the work of a striking or locked out employee” under section 97 meant “the work a striking or locked out employee would probably have been performing had he or she not been striking or locked out”.
The Supreme Court then held that the Court of Appeal was wrong in ruling that the Employment Court had asked the wrong question. The Supreme Court held the following:
“A person’s work may in fact engage many tasks, not necessarily as comprehensive in practice as may be stipulated in a particular employment contract. Other employees of the same employer may have similarly described duties in their employment contract. Some may, regularly, for a greater or lesser length of time, carry out some of the tasks that another worker usually does. In such cases the duties, or work, of one is integrated with, or qualified by, or adumbrated by the work or duties of another. How, and to what extent, will establish a pattern, analysis of which will determine whether a striking or locked out worker’s work is being performed in breach of section 97, rather than whether the non-striker is performing his or her own work. Where there is a departure from a pattern of integration of work, that may indicate section 97 has been contravened.”
The Supreme Court accepted the Employment Court’s conclusion that the use of contract engineers who habitually performed some of the line maintenance work (albeit a small proportion) was not, in the circumstances, performance of the work of the striking employees. The company had not breached section 97.
Wrigley and Kelly v Vice-Chancellor Massey University—Employment Relations Authority, Wellington, January 2010. Application for disclosure of information—successful.
The Employment Relations Authority has determined that the employees concerned were entitled to interview sheets and candidate comparisons drawn up during the restructuring process.
During a restructuring, the employees’ positions were made redundant. They both applied—unsuccessfully—for new positions created as part of the restructuring.
Candidates for the new positions were interviewed by a selection panel, which scored them on their responses to each question. After the interviews, individual assessment sheets were drawn up for each candidate.
A candidate comparison/summary of ratings sheet was made for each of the two positions. This sheet was used to identify which candidates were to be recommended for appointment.
The convenor and HR representative then met with the candidates to advise them of the provisional views of the selection panel, including the reasons for these views, and invited them to give their feedback.
After considering the candidates’ feedback, the provisional recommendations were confirmed. The convenor sent a letter to the University, setting out the panel’s recommendations, the reasons for them, and a brief comment about the unsuccessful candidates.
The employees claimed that, under section 4(1A) of the Employment Relations Act 2000, they were entitled to more information than they had been given, which was the selection criteria, the composition of the selection panels, who the other candidates were, feedback from the selection panel, and the individual assessment sheets giving their scores.
The Employment Relations Authority determined that the employees were not entitled to all information, but only to relevant information. What is ‘relevant information’ depends on the fact of each case.
In this case, the Authority determined that the employees were entitled to more information than they were given, and the opportunity to comment on it: “if only to ensure there are no issues of perverse or irrational scores or addition errors”. This was because the comparison of candidates was fundamental to their selection.
The Authority determined that the employees were entitled to the panel’s interview sheets for all candidates, the candidate comparison/summary of ratings sheet, and the panel’s recommendations to the University.
However, the Authority declined the claim they the employees were entitled to the “significant amount of information in the minds of the selection panel members and the decision maker that has not been committed to writing”, such as the panel’s views on how the candidates performed in the interviews.
—Selected and written
by Louisa Clery
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