Compensation for Humiliation etc Table

(s123(c)(i) ERA)

Employment Court and Employment Relations Authority

1 Jan 2003 – 31 Dec 2003

Amount of Award $	Employment Relations Authority  (149)	Employment Court (26)
1 - 999	6
1,000 - 1,999	18	1
2,000 - 2,999	25	2
3,000 - 3,999	23	1
4,000 - 4,999	6	1
5,000 - 5,999	18	6
6,000 - 6,999	9	1
7,000 - 7,999	15
8,000 - 8,999	10	2
9,000 - 9,999		1
10,000 - 10,999	10	3
11,000 – 11,999
12,000 – 12,999	3	2
13,000 – 13,999
14,000 – 14,999
15,000 -	6	6

 

While every effort is made to ensure the accuracy of the information provided in this table, the Court, Authority and Information Centre accept no liability for any consequences that may arise from reliance on this data.  The awards shown above take into account any reduction for contributory fault.  Also note that Employment Relations Authority awards that have been set aside or altered by the Court are not included in the table.

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Awards of $15,000 and over

Assor v Futuna Trust unreported PR Stapp, 2 July 2003, WA 93/03

The applicant was employed by the respondent to help manage one of its property developments.  The relationship between the applicant and a director of the respondent was strained from the beginning and the applicant had accepted a reduced role and salary to remain employed by the respondent.  The applicant alleged she suffered abuse from the director who referred to her as “stupid” and “dumb” in front of others as well as swearing at her.  The applicant was issued with two warnings for poor performance.  In response the applicant through her lawyer submitted a letter raising concerns about her treatment and referred to possible grounds for several personal grievances.  The applicant was subsequently dismissed when the director of the respondent concluded that as the applicant had failed to return her employment agreement he could terminate the relationship, even though the applicant had been working for the respondent for over 7 months. 

The Employment Relations Authority held that two warnings previously given were predetermined and without notice.  The Authority further held that a fair and reasonable employer could not justify dismissing an employee for not signing an employment agreement.  The Authority awarded the applicant $15,000 compensation.

D v N Ltd and Anor unreported, YS Oldfield, 25 September 2003, AA 290/03

D was employed in one of three restaurants owned by company N.  Y, a director of N, had been the person who employed D.  An agreement was also entered into between D and Y where Y agreed to help D with his permanent residency application and pay him in exchange for D working and agreeing to do everything requested of him within reason. 

Y and D entered into a consensual sexual relationship for which Y would give D money.  D broke off his relationship with Y, who remained upset at this decision and could not accept it.  Y continued to ring D both at his home and at the restaurant.  He also frequently visited the restaurant to watch D while he worked.  D complained to his manager who raised the issues with another director of the respondent (“W”).  W later met with D and heard the allegations first hand, but chose not to reprimand Y in any way, which meant the harassment continued. 

D was involved in an argument with a co-worker and Y dealt with the issue by querying D about it.  Y dismissed D later that day by asking him not to return to work. 

The Employment Relations Authority determined D was employed by N and not Y personally.  It held that from 20 April onwards D was sexually harassed by Y, who was held to be a representative of N, and had been subjected to unwelcome behaviour which had a detrimental effect on him.  D’s dismissal was held to be procedurally and substantively unjustified.  The Authority formed the impression that the dismissal was because D had told a co-worker about the sexual harassment.  In terms of compensation the Authority found D was deeply traumatised by Y’s conduct prior to the dismissal and by the actual dismissal.  A global award of $60,000 compensation for the sexual harassment and unjustified dismissal was made.

Bacica v Working Knowledge Group Ltd unreported, D Asher, 17 December 2003 WA 175/03

The applicant was employed by the respondent who specialised in information technology project delivery. 

The applicant took a short break from work to have a baby.  During that break a customer of the respondent’s for whom the applicant had undertaken projects for previously sought to reinstate the project and met with the applicant.  The applicant informed the respondent of this after the meeting.  In reply the respondent instructed the applicant to have no further contact with the client.  A review of the meeting was undertaken by the respondent without the applicant’s knowledge.  The respondent also sought to undertake a performance review of the applicant and duly informed her. 

However the performance review never took place.  Instead the respondent met with the applicant on the grounds that she may have disregarded a lawful instruction not to be in contact with a client.  The respondent had learnt from a staff member that the applicant had had further contact with the same client.  Two meetings were held and as a result the respondent sent a formal letter to the applicant stating that it no longer had trust and confidence in her and that she would have to convince the respondent to retain her.  The respondent invited the applicant to a meeting but clearly stated that unless able to persuade it otherwise it intended to dismiss her.  The applicant resigned shortly after the meeting. 

The Employment Relations Authority held that the applicant had been constructively dismissed on the basis that the respondent was unable to fairly conclude it no longer had the requisite trust and confidence in the applicant.  It further held that the letter sent to the applicant had the effect of repudiating the employment contract between the parties, leaving the applicant with the clear impression that the respondent had reached its conclusions on the basis of incomplete explanations and arrived at a predetermined view. 

In terms of compensation the Authority held that forceful evidence was provided by the applicant in respect of the distress caused by the respondent.  This evidence included shock at the fast unfolding event were which was unprecedented in her working life, the fact that she had recently returned from maternity leave, workplace stress impacting on her relationship with her newborn child and that she was the sole income earner for her family.

The Authority awarded $15,000 compensation.

Shaddox v EDS (New Zealand) Ltd unreported, D Asher, 17 December 2003, WA 174/03

The respondent which specialised in information technology project delivery sought to reduce staffing levels and change its strategic direction.  All staff including the applicant were informed that their jobs were in jeopardy.  In relation to the applicant’s department the respondent decided to reduce its staff from 17 to 13 employees.  The applicant was informed that there would be a closed selection process based on selection criteria related to project management competencies.  The applicant and other staff were invited to complete a relevant competency and skills self-evaluation form. 

As result of the selection process the applicant was ranked 11th out of 17 employees.  Despite the ranking the applicant was selected for redundancy.  The basis for this decision was on extra criteria applied, revealed for the first time to the applicant at the Employment Relations Authority’s investigation meeting. 

The Authority held that the dismissal was procedurally unfair and substantively unjustified as the extra criteria was not divulged to the applicant during the selection process.  The Authority stated that while the redundancy was for genuine reasons the selection criteria itself was not genuine. 

In assessing compensation the Authority considered the impact of the respondent’s assurances as to how it would treat the applicant, its failure to do and the effect this had on the applicant.  The applicant was awarded $15,000 compensation.

Air New Zealand Ltd v Rush unreported, Colgan J, 17 September 2003, AC 51/03

The defendant was employed by the plaintiff as a senior captain.  On reaching the age of 60 he became subject to international age restrictions on captains of aircrafts flying over United States airspace.  The plaintiff’s policy was for pilots, on approaching 60, to be entitled to place advanced bids for positions not affected by the restrictions in the hope that a vacancy might arise.  The defendant submitted a bid for a particular position two and a half months before his 60th birthday, but post dated the bid. 

The first communication the defendant received from the plaintiff was a letter 5 weeks before his birthday requesting information about his intentions for his future employment.  A telephone conversation took place where the defendant’s manager incorrectly assumed the defendant wanted to retire if he failed to gain the position he sought.  The day before the defendant’s birthday the manager sent a second letter to the defendant.  It confirmed the defendant’s annual leave period, and stated that he would be on retirement leave for two months and following the expiry of his annual leave, his employment with the plaintiff would terminate.  The defendant wrote back clearly notifying the plaintiff that he did not wish to retire.  However the manager made no attempt to clarify the matter.  The last letter from the plaintiff confirmed the termination date of the defendant’s employment. 

The Employment Relations Authority had found that the defendant had been unjustifiably discriminated against on the basis of age and unjustifiably dismissed.  It awarded the defendant $35,000 compensation.  The plaintiff challenged the determination. 

The Employment Court also found that the defendant had been unjustifiably discriminated against and unjustifiably dismissed (although on different grounds from the Authority).  The Court reduced the amount of compensation to $15,000 as it did not view the circumstances of the case to be as severe as those cases where higher awards had been made.   

Excell Corporation Ltd v Stephens unreported, Shaw J, 29 July 2003, AC 32A/03; unreported, Shaw J, 1 October 2003, AC 32B/03

The defendant had been employed by the plaintiff for 22 years and had held a senior position of team leader.  The defendant was suffering from stress related to his working relationship with his manager and had undertaken counselling as a result.  The defendant decided to visit his daughter for a weekend but later decided to include Monday as his date of return.  He felt that he could take a day’s sick leave because of the stress he had suffered and he reorganised his flight times accordingly.  A fax confirming the altered flight booking was sent to the plaintiff’s premises and was intercepted by the defendant’s manager and copied.  The manager then decided to go to the airport on the day in question and proceeded to photograph the defendant getting into a taxi. 

The manager was advised to contact the defendant to determine whether there were reasonable grounds to continue an investigation and to suspend the defendant pending a disciplinary investigation.  Allegations of misconduct were put to the defendant and a disciplinary meeting was undertaken by a senior manager of the plaintiff.  The defendant learnt for the first time at the meeting that his manager had copied the travel fax and photographed him.  The defendant provided a medical certificate explaining his absence.  The senior manager stated that it was irrelevant whether the defendant was actually sick on the day because he concluded that the defendant had decided in advance to abuse the plaintiff’s sick leave system.  The defendant unsuccessfully attempted to explain that his stress was related to his relationship with his manager and offered to provide further medical evidence of his illness.  The defendant was subsequently dismissed. 

The Employment Court held that it was unfair to set a trap for the defendant when the matter could have been dealt with by raising it with the defendant upon receiving the fax.  The Court added that the manager’s stakeout at the airport added to the covert nature of the respondent’s investigation.  It was further held that there were a number of procedural deficiencies including the senior manager’s failure to further investigate claims or to put his real reasons for concern to the defendant. 

In relation to the unjustified dismissal the Employment Court held that the defendant had suffered considerably in his last weeks of employment.  Although the defendant had not made a claim for work-related stress the Court recognised that the stress had put the defendant in a fragile condition which was worsened by the circumstances of the dismissal and that the respondent knew of the defendant’s condition before he was dismissed.  The Court also took into account the defendant’s kaumatua status and the resulting public shame following his dismissal.  It awarded $15,000 for the unjustified dismissal.