Issue 161
A truck driver who was bullied by her manager was constructively dismissed because her employer failed to take adequate measures to protect her. The employee made a written complaint about being bullied by her manager. He was told to apologise, which he did, however, he then stopped addressing her directly, instead instructing her through other employees.
The employee made ongoing complaints to the HR manager over the next six months that her manager had reduced her working hours, was giving her the worst loads to deliver, and continued to abuse and humiliate her. The HR manager’s advice to her was to keep a diary of events, refuse to carry out work if she considered it to be unsafe, and contact a lawyer if she wanted to pursue the matter.
After a final incident where the manager shouted and swore at the employee, she went on stress leave, eventually resigning and claiming constructive dismissal. The Employment Relations Authority determined that a policy of deliberate avoidance by a direct manager of a subordinate could constitute workplace bullying.
When the employee complained of her manager ignoring her, a fair and reasonable employer would have addressed the manager’s behaviour with professional interventions, such as sending him on anger management or interpersonal skills courses, or appointing an independent conciliator to help the parties improve their relationship.
On the evidence, the Authority concluded that the employee was subjected to workplace bullying by her manager, in that she was subjected to repeated unwanted and unwarranted behaviour which she found to be offensive, intimidating or humiliating, and which had a detrimental effect on her dignity, safety and well-being.
It concluded that there was a fundamental repudiatory breach of contract by the employer and the employee’s resignation was reasonably foreseeable. She was constructively dismissed and was entitled to lost wages and $25,000 compensation for humiliation, loss of dignity, and injury to feelings.
Tanner v Todd & Pollock Haulage (2006) Ltd ERA Auckland, 23 May 2011
An employee who had a moko on her forearm was a casual worker for a catering company. She was in direct contact with the company’s clients and she and her co-workers were, in effect, the ‘face’ of the company. The company employed people from a variety of ethnicities.
The employee was of Maori descent and she considered her moko to be a profound expression of who she was. When she first worked for the company, all staff wore three-quarter length sleeved shirts that almost completely hid her moko. However, a new short sleeved shirt was introduced and the employee wore this shirt for at least three shifts with her moko visible.
When preparing to cater for a “top end” function, the company director noticed the employee’s moko. He felt that staff should not be displaying such a “large prominent tattoo” at the function, and the operations manager asked her to wear the longer-sleeved shirt. She agreed, but was upset at being treated differently from other staff. She did not communicate this to the operations manager, but instead complained to the Human Rights Commission that she had been the victim of racial discrimination and harassment.
The Human Rights Review Tribunal first considered the claim that the employee was subjected to direct discrimination under section 22 of the Human Rights Act 1993, ie, that she was afforded less favourable conditions of work and/or detriment in her work to which other employees were not subjected, because she was Maori.
The Tribunal did not exclude the possibility that some skin markings may be so clearly evocative of, and connected to, a particular race or ethnic group that it was sufficient to identify a person as being of that group, and that the marking is worn for that reason, and only (or at least predominantly) by that group for that purpose.
However, on the evidence, the Tribunal did not accept that the employee’s moko fell into that category. It was of a design that may be worn by someone of non-Maori descent and there was no suggestion that having a moko of that kind was in any sense a requirement or expectation for people of Maori ethnicity. It was not satisfied that if the employee had been wearing the same design but was not Maori, the company would have done anything differently. Also, the company employed other Maori people and it did not ask them to wear the longer sleeved shirts. The Tribunal held that a claim of direct discrimination could not be established in the circumstances.
Several overseas cases were raised by the employee’s counsel, prompting the Tribunal to observe that, unlike South African law, neither the New Zealand Bill of Rights Act 1990 nor the Human Rights Act 1993 include culture as a prohibited ground. If culture were a prohibited ground, the claim for direct discrimination might have had a better prospect of success.
The Tribunal then considered her claim under section 65 of the Human Rights Act, ie, that the requirement to cover her moko was an act of indirect discrimination in the sense that any rule against visible tattoos had the effect of treating wearers of ta moko unfavourably on the grounds of their race and/or ethnic or national origin.
The Tribunal held that whether the rule was disrespectful of Maori whakapapa, cultural tradition and custom, as the employee claimed, very much depended on what the moko was, where it was placed on the body, and a host of external factors (such as the occasion that was said to justify a request to cover the moko). The proposition that non-Maori would not experience such a detriment as a result of a no tattoos policy was not accepted by the Tribunal. There are non-Maori people who wear tattoos as a profound expression of their identity.
It concluded that the request did not amount to indirect discrimination. It noted that context is everything and what happened in this case was unlikely to have anything much in the way of precedent value for future cases.
Haupini v SRCC Holdings Ltd NZHRRT, 28 September 2011
An employee who was dismissed for swearing at his manager has successfully appealed to the Employment Court, partly because the employer used a standard form that didn’t give details of the allegations.
Under the company’s code of conduct, the use of insulting or abusive language was misconduct and assault was serious misconduct. The code also provided for a first written warning, final written warning, then dismissal for misconduct, and a final written warning or dismissal for serious misconduct. It didn’t mention “letters of concern”.
The employee was given a standard “interview acknowledgement/consent form” to attend a disciplinary meeting. The form had the “general misconduct” and “serious misconduct” boxes ticked to describe his actions, and all four boxes ticked for possible outcomes of the meeting, ranging from “No action” to “Termination of employment”.
The actions discussed in the meeting were refusing to do as he was told and swearing in the store. He was given a “letter of concern” telling him not to back chat his manager and to refrain from swearing. A couple of months later, there was a confrontation between the employee and his manager. The manager alleged that the employee swore at her and shut the chiller door in her face. The employee was summoned to a disciplinary meeting using the same interview form, which again had all the boxes ticked. The reasons given for the interview included “verbal assault”.
The disciplinary meeting ended with the employee’s dismissal. He denied swearing at his manager. Some considerable time into the meeting, he was shown a witness statement saying another member of staff heard him swear. About halfway through the meeting, he was shown video surveillance footage taken at the time of the argument.
The Employment Court held that the disciplinary investigation was not procedurally fair. The Court said “... it will be a rare occasion when it is appropriate for an employer to make use of a generic printed form to convene a disciplinary meeting without providing further particularised information to the employee about the focus of the investigation”.
The employee was given no details of the obscene language he was alleged to have used, and the ticking of every box on the form was inherently confusing. It wasn’t until well into the meeting that he was presented with the witness statement and the video surveillance. He did not have the opportunity to prepare a satisfactory response.
Another unsatisfactory feature of the process was that the company unilaterally went against its code of conduct by creating a new form of serious misconduct, namely “verbal assault” and a new mode of disciplinary action, namely a “letter of concern”.
The employee’s dismissal was unjustified and he was entitled to lost earnings and $8000 compensation, to be reduced by 60 percent because he swore at his manager.
Gaut v BP Oil New Zealand Ltd EC Christchurch, 23 June 2011
The Employment Court has looked at the distinction between casual and fixed term employment, including how they intersect in the case of an employee who was employed on a casual basis to work “as and when required”. After a few months as a casual employee, he agreed to fixed-term, full-time employment to cover for someone who was on leave. That person never returned to work and the employee continued working full-time after the expiry of his fixed-term agreement.
About a year after his (six-month) fixed-term agreement began, the employee was no longer included on the rosters, but was offered casual work. He claimed he had been unjustifiably dismissed.
The Employment Court observed that this case highlights some difficult questions about the distinctions between casual and fixed-term employment. It noted that case law has yet to tackle whether these two types of employment intersect. The difficulty, according to the Court, is that both casual and fixed-term employment are temporary and will end in a way that is agreed in advance, does not amount to a dismissal, and does not entitle the employee to unjustified dismissal personal grievance rights.
Casual employment is characterised by irregularity of engagements and the shortness of their limited durations. This contrasts with fixed-term employment, which has set hours and days of work (albeit for a finite period) so that the employee and the employer may predict and rely upon when the employee will be at work. The other difference is that, unlike casual employment, fixed-term employment must be related to a specified project or situation, such as the replacement of an employee on parental leave or long term accident or sickness. Having said that, some short casual engagements are to cover brief and unexpected periods of sickness.
Until the final six months, the employee was clearly a fixed-term employee, and before that a casual employee. If his fixed term had concluded after the six months provided in the agreement, he could not have complained of dismissal, let alone unjustified dismissal.
However, on the expiry of the fixed term, the employer failed to address the requirements of section 66 of the Employment Relations Act 2000 if it wished to engage him for another fixed term. At that point, the employment became permanent.
The employee’s dismissal was unjustified. He was entitled to lost remuneration and $4000 compensation for distress.
Muldoon v Nelson Marlborough District Health Board EC Christchurch, 10 August 2011
Employees allowed an extra week of annual holidays after six years’ service were entitled to four weeks (not five) due to the wording of their collective agreement.
The agreement was in force from 2005 until 2008. Under the title ‘Annual holidays’, it provided that “At the end of each year of employment ... you are entitled to three weeks annual holidays”. It also provided that “Upon completion of six years current continuous service you will for the sixth and subsequent years be entitled to an additional one week of annual holiday”.
The Employment Relations Authority determined that reference to “three weeks” ought be read as “four weeks” when the minimum statutory entitlement to annual holidays increased in 2007, and that the additional week after six years was long service leave additional to the four weeks’ annual holidays provided by the Holidays Act 2003.
The Employment Court disagreed. It held that the basis on which employees became entitled to an additional weeks’ holiday, eg, long service, did not necessarily determine the nature of that holiday. The purpose for which a holiday is allowed and the nature of the holiday are different concepts.
The Employment Court pointed out that the collective agreement was concluded at a time when the parties were aware of the impending increase to four weeks’ annual holidays. In a change from previous agreements, which used the term “annual leave”, the parties deliberately used the term “annual holidays” to describe the additional entitlement for longer serving employees.
The Employment Court held that the inference must be that the parties intended the term “annual holidays” to have the meaning given to it under the Act.
In relation to the clause providing three weeks’ annual holidays, which is below the statutory minimum, section 6(3) applied. This states that an employment agreement that excludes, restricts, or reduces an employee’s entitlements under the Act has no effect, but is not an illegal contract.
Employees who did not have six years’ service were entitled to less than the statutory minimum annual holidays under the agreement, so that part of the agreement had no effect. These employees became entitled to four weeks by operation of the statute.
Employees who did have six or more years’ service were also entitled to four weeks’ annual holidays. The additional week for longer serving employees could form part of the minimum under the Act.
Cerebos Greggs Ltd v Service & Food Workers’ Union Nga Ringa Tota EC Christchurch, 27 May 2011
—Cases selected and written
by Louisa Clery
Subscribe now!
Top of Page |
