Compensation Awards 04

Compensation for Humiliation etc Table

(s123(c)(i) ERA)

Employment Court and Employment Relations Authority

1 Jan 2004 – 31 Dec 2004

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.  Where there were two successful applicants awarded separate amounts, those amounts are recorded separately.

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Awards of $15,000 and over

Waugh v Commissioner of Police unreported, Goddard CJ, 23 June 2004, WC 8/04 – Decision on remedies

The applicant was employed as a police officer.  In 1998 he was charged with fraud in relation to claims he had made for reimbursement of expenses.  He pleaded guilty to some charges, after the respondent told the applicant’s legal advisers wrong information which led the applicant to believe if he was unsuccessful in defending the charges of fraud he would not receive his full superannuation entitlement.

This case was removed to the Employment Court.  In a previous decision the Court had found that the applicant had been unjustifiably disadvantaged in his employment.  The Court found that the applicant’s resignation was a nullity because it was a constructive dismissal which could not take effect as it had not been preceded by the necessary inquiry under s12 of the Police Act 1958.  Therefore, he had a disadvantage grievance because the Commissioner refused to let him return to work and pay him a salary since 1998.

In the decision on remedies, the Court awarded the applicant compensation for humiliation as well as lost remuneration, compensation for loss of chance of promotion, and compensation for pecuniary losses.  Superannuation was left to the parties to resolve, and no exemplary damages were awarded.  In awarding $50,000 for compensation for humiliation the Court held that it was difficult to imagine anything more humiliating in the circumstances of a dismissal than what had happened to the applicant.  There was no reduction for contributory conduct.

EDS (New Zealand) Ltd v Shaddox unreported, Goddard CJ, 24 June 2004, WC 9/04

The defendant was dismissed by the plaintiff on grounds of redundancy.  It was clear that the redundancy was genuine.  The procedure used in implementing the redundancies was at issue in this case. 

The defendant, and other affected employees, were advised of the impending redundancies and told that the selection would be based on skills and competencies as determined in templates provided.  However, in deciding to terminate the defendant’s employment, an additional criterion not made known to the defendant was applied.  This meant that although the defendant ranked 11th out of 17 based on the criteria made known to staff, taking into account the additional criterion, the defendant was dismissed ahead of lower ranked staff members.

The Court held that the redundancy was procedurally unfair and that the undisclosed process was such a departure from the requirements of s4 of the Employment Relations Act 2000 and generally so influential that the absence of an opportunity for the defendant to have known what it was and to have input made it impossible for the plaintiff to have satisfied the Court that the dismissal was justifiable.

The Court dismissed the plaintiff’s challenge.  It confirmed the compensation of $15,000 awarded by the Authority (as well as the award for reimbursement of lost wages).

Lewis v Greene unreported, Shaw J, 28 July 2004, AC 7A/04

The defendant was dismissed by the plaintiff on grounds of redundancy while she was on parental leave.  During the defendant’s leave, the plaintiff did not hire a temporary staff member, but instead absorbed the defendant’s work into existing staff workloads.  The defendant was told by the plaintiff that she was being made redundant shortly before her return from parental leave.

The Court found that the redundancy was not genuine.  It found that neither the fact of overstaffing or the plaintiff’s awareness of overstaffing occurred after the defendant’s leave had been approved.  The Parental Leave and Employment Protection Act 1987 (“PLEPA”) applied in this case.  The Court held that the plaintiff was in breach of his undertaking to the defendant to keep her work open for her and in breach of the presumption in the PLEPA that the defendant’s work would be kept open.  It further held that the redundancy was seriously procedurally flawed. 

The Court awarded $15,000 compensation to the defendant.  It held that the distress, humiliation and injury to feelings suffered by the defendant were significant and led to a disabling lack of confidence which affected her professional and social life.  Therefore, the Court held that the defendant was entitled to an award of compensation at the higher end of the range of remedies.  However, since the defendant’s claim was for $15,000, the Court held that that amount was the maximum it could award.

Miles v Richmond Ltd  unreported, GJ Wood, 17 August 2004, WA 109/04

The applicant was a manager at the respondent’s Oringi plant at the time of two serious workplace incidents involving cleaning staff: firstly, a death, and secondly, a serious accident.

The applicant was suspended while investigations into the incidents proceeded.  The applicant decided that it would have been impossible for him to return to his position following the suspension.  The applicant resigned, and alleged that he had been constructively dismissed.  The applicant also alleged that the suspension was unjustified. 

The Authority found that the suspension was procedurally and substantively unjustified.  It found that there was no need to have suspended the applicant.  It further found that the suspension and its aftermath constituted a breach of the respondent’s duties to the applicant of sufficient seriousness that it was reasonably foreseeable that the applicant would not have been prepared to stay working for the respondent. 

The respondent’s counterclaims seeking damages for breach of contract and failure to give notice were dismissed.

The Authority held that significant compensation was called for and awarded the applicant $20,000 compensation.  The Authority accepted that the applicant had been greatly affected by events and felt deeply about the impact that had on his family.  The Authority took into account the fact that the applicant had secured another job, the fact that his reputation with former staff remained high, and that his boss’s report did not seek to place most of the blame for the incidents on him.  The tragic background to the matter was also taken into account.

Munro v Village New Plymouth Ltd t/a Highlands Lodge unreported, D Asher, 14 October 2004, WA 88A/04

The applicant was dismissed by the respondent on grounds of redundancy.

The applicant and other staff members were told of a staff review and restructure, but were not told of the possibility of the loss of jobs.  At a meeting a few months later the applicant was told for the first time that staff numbers had to be cut, and was then told she did not fit the respondent’s criteria and there was no job for her.  The position was later filled by another person.

The Authority found that the redundancy was procedurally and substantively unfair.  It was also found that the process was in breach of the requirements of section 4 of the Employment Relations Act 2000.  The Authority was satisfied that a significant award of compensation was warranted and awarded the applicant $15,000 compensation.

Hotop v Chief Executive of the Department of Corrections  unreported, D Asher, 3 November 2004, WA 148/04

The applicant was employed by the respondent as Unit Manager of the Manawatu prison.  He was dismissed on the grounds of serious misconduct following the death of an inmate.

The inmate had been placed on 30 minute observations by other staff members.  According to the policy and procedure manual, the inmate should have been placed on 15 minute observations.

The Authority held that the applicant had been unjustifiably dismissed.  It found that there was no serious misconduct: the applicant had met all express requirements of an on-call manager as set out in manuals.  Rather, other staff had failed to meet requirements and convey relevant information to the applicant.  The Authority further found that the performance of the applicant was evaluated by unreasonable and subjective standards which had not been told to the applicant.  It also found that there was serious disparity of treatment between the applicant and other staff members involved.

The Authority awarded the applicant $15,000 compensation, plus reimbursement of lost wages.  The Authority held that it was hurtful for the respondent to have suggested that the applicant was responsible for the inmate’s death.  Reinstatement was ordered.  (The Authority made an order prohibiting publication of details of the inmate’s death).

Dennehy v Attorney General in respect of the Ministry of Development unreported, P Cheyne, 22 November 2004, CA 137/04

The applicant, who worked for the respondent as a senior insolvency officer, was dismissed for serious misconduct.

The applicant was verbally unpleasant to a colleague during a staff lunch.  Other employees also told of his intimidating and forceful behaviour in the workplace.  The applicant was summarily dismissed after an investigation into the misconduct.  During the investigation the applicant was suspended.

The Authority found that the suspension was justified, but that the dismissal, although procedurally fair, was substantively unjustified.  It found that the applicant’s conduct was not serious misconduct as defined in the code of conduct.  It also found that earlier incidents not raised at the time they occurred were wrongly taken into account.  The Authority held that the incident at the staff lunch was misconduct which only justified the respondent  invoking the warning procedure.

The Authority declined to order reinstatement on the grounds that it would be impractical since the applicant could not have worked co-operatively with colleagues or two of his managers if reinstated.  It accepted that the dismissal caused the applicant considerable hurt and humiliation and that the loss would be ongoing since reinstatement was not ordered.  The Authority awarded $20,000 compensation reduced by 25 percent for contributory conduct.  The Applicant was therefore awarded $15,000 compensation (and also 4 ½ months lost wages). 

Challenges to the Employment Court where the Employment Relations Authority awarded compensation*

Sisson t/a Edgeware Law v Lewis unreported, 12 March 2004, Goddard CJ, CC 4/04 – The Authority awarded $12,000 compensation to the employee.  The challenge by the employer was dismissed.  The Court, therefore, also awarded $12,000. (Authority determination: P Montgomery, 22 September 2003, CA 100/03.  Included in 2003 Compensation table).

IHC Northern Vocational Services v Jordan unreported, 7 May 2004, Shaw J, AC 25/04 – The Authority awarded $10,000 compensation to the employee.  The challenge by the employer to the Court was dismissed.  The Court, therefore, also awarded $10,000. (Authority determination: Y S Oldfield, 29 July 2003, AA 231/03.  Included in 2003 Compensation table).

EDS (New Zealand) Ltd v Shaddox unreported, 24 June 2004, Goddard CJ, WC 9/04 – The Authority awarded $15,000 compensation to the employee.  The challenge by the employer to the Court was dismissed.  The Court, therefore, also awarded $15,000 compensation to the employee. (Authority determination: D Asher, 17 December 2003, WA 174/03.  Included in 2003 Compensation table).

Lewis v Greene unreported, Shaw J, 28 July 2004, AC 7A/04 – The Authority awarded $7,000 compensation to the employee.  The challenge by the employer to the Court was unsuccessful.  The Court awarded the employee $15,000 compensation. (Authority determination: YS Oldfield, 10 November 2003, AA 337/03.  Included in 2003 Compensation table).

Xu and anor v McIntosh unreported, Goddard CJ, 18 November 2004, WC 13A/04 – The Authority awarded the employee $6,500 compensation.  The challenge by the employer was partly successful.  However, the Court awarded the employee $7,500 compensation.    (Authority determination: D Asher, 6 September 2002, WA 83/02. Included in 2002 Compensation table).

Birthright (Palmerston North) Inc v Maraki unreported, Shaw J, 17 December 2004, WC 24/04 – The Authority awarded the employee $3,000 compensation.  The challenge by the employer was unsuccessful.  Therefore, the Court also awarded $3,000 compensation to the employee.  (Authority determination: D Asher, 22 July 2004, WA 90/04.  The Authority award of compensation is not included in the 2004 Compensation table).

*This section provides short summaries of challenges to the Court where the Authority awarded compensation.  This recognises the fact that an amount of compensation previously awarded by the Authority, and previously included in a compensation table, has been altered by the decision of the Court.