Personal Grievance - Unjustified Disadvantage - Employment Relations Act 2000
Casse v Chief Executive, Department of Labour
21 Oct 2008, V Campbell, AA 362/08, (12 pages)
UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably disadvantaged by two warnings – Applicant received letter setting out expected standards of behaviour after applicant swore at Acting Service Manager (“N”) – Authority found letter did not constitute warning and meeting that followed did not constitute disciplinary meeting - Letter not unjustified action leading to disadvantage – Applicant claimed final written warning (“final warning”) was unjustified disadvantage – During facilitated workshop applicant challenged N and walked out of meeting – Disciplinary meeting held - N determined applicant’s conduct amounted to serious misconduct and issued final warning for serious misconduct – Authority found conduct complained of escalated from misconduct to serious misconduct during course of disciplinary process – Employer acting fairly and reasonably would not have escalated matters during disciplinary process without putting applicant on notice – Authority found N significantly influential in decision-making process – Authority satisfied N unable to give matter objective consideration deserved – Found fair and reasonable employer of respondent’s size would have ensured N did not act as decision-maker – Issuing of final warning unjustified – Final warning caused disadvantage as applicant’s employment became more tenuous than if given oral or written warning – Applicant suffered unjustified disadvantage – Remedies – Authority rejected applicant’s claim that workshop was mediation in disguise – Found applicant aware of workshop’s purpose – Applicant’s conduct exemplified type of conduct managers attempting to alter – 50 percent contributory conduct – Evidence of effect of apprehension of loss of job and lack of enjoyment of job as result of final written warning – In making award, Authority took into account that applicant could legitimately have been issued with oral or written warning for conduct – Health and Safety Inspector
Result: Application granted ; Compensation for humiliation etc ($1,500) ; Costs reserved
Choveaux v Accident Compensation Corporation
13 Aug 2007, G J Wood, WA 110/07, (21 pages)
UNJUSTIFIED DISADVANTAGE - Applicant alleged respondent failed to provide safe workplace - Applicant’s manager subject of anonymous offensive emails that also mentioned applicant - Respondent attempted to ascertain sender but unsuccessful - Respondent aware applicant more susceptible to emails than average employee - Applicant claimed did not feel safe as appeared sender was co-worker - Raised personal grievance and began own investigation, which involved her breaching confidentiality by providing work documents to external party - Authority accepted not possible to locate sender of emails - Respondent supportive of applicant and provided options to minimise risk - Took all practicable steps to provide safe work environment - No unjustified disadvantage - UNJUSTIFIED DISMISSAL - Abandonment - While pursuing personal grievance over emails applicant’s father found to be as terminally ill - Applicant alleged dismissed for abandonment when respondent knew she was attending bedside of dying father - Manager aware applicant with father but did not pass information on - Good faith obligations in Employment Relations Act 2000, in particular 2004 amendment, placed higher threshold on employers when considering abandonment than previously - Respondent knew applicant had not resigned and was instead trying to resolve safety issue to return to work - Respondent unreasonable to pursue abandonment - Request for applicant to contact HR also related to disciplinary investigation and applicant entitled to have representative - Respondent knew, or ought to have know applicant had genuine reasons for absence and ignored them in order to rely on abandonment policy - Obligations of good faith not met - Alternatively, respondent could not rely on policy as applicant contacted manager and not her fault message not passed on - No fair and reasonable employer would have denied employee leave in circumstances - Applicant dismissed - Dismissal unjustified - Remedies - Reinstatement not practicable as not in applicant’s best interests - Also position no longer required by respondent - Impact on applicant exacerbated by respondent’s response to letter seeking reinstatement which displayed no compassion - Applicant’s approach to investigating email sender contributed to situation, but failure to contact HR did not as respondent unreasonably did not allow representative to act on her behalf - Contributory conduct 20 percent - Assistant
Result: Application granted (Dismissal) ; Reimbursement of lost wages ($1,619.97) ; Compensation for humiliation etc ($10,000 reduced to $8,000) ; Application dismissed (Disadvantage) ; Costs reserved
Cole v Axiam Plastics Ltd
25 Sep 2007, D Asher, WA 132/07, (8 pages)
UNJUSTIFIED DISADVANTAGE - Disciplinary meeting held after applicant brought air gun to work and fired “some rounds” - Applicant claimed given choice between demotion or dismissal - Respondent contended prepared dismissal letter but decided in circumstances final warning more appropriate - Denied applicant ever permanently appointed to supervisor position so no demotion - Appointment to supervisor position on trial basis only - After investigation into air gun incident respondent fairly and reasonably concluded applicant not suitable for position and remove him from it - Not unjustifiably disadvantaged by demotion - UNJUSTIFIED DISMISSAL - Misconduct - Applicant dismissed after altercation with manager while trying to obtain employment file - Witness evidence supported contention applicant threatening and verbally abusive - Having regard to serious misconduct with air gun, decision to dismiss reasonable - Not necessary to make finding as to fairness of process as contributory fault would disentitle applicant to any remedies - Dismissal justified - Process worker
Result: Application dismissed ; Costs reserved
Drummond v National Union of Public Employees Inc
10 Aug 2007, P Cheyne, CA 100/07, (24 pages)
UNJUSTIFIED DISADVANTAGE - Respondent unilaterally varied employment agreement by reducing applicant’s hours - Applicant entitled to reject purported variation and insist on proper performance of agreement - Entitled to full salary from date of reduction - Authority determined applicant had raised grievance about issue - Unjustified disadvantage - Remedies - Applicant contributed to circumstances giving rise to disadvantage as misled respondent about salary when it took over his previous employer - Contributory conduct 60 percent - UNJUSTIFIED DISMISSAL - Misconduct - Breach of duty of fidelity - Parties relationship deteriorated, number of disciplinary investigations begun but reasonable in circumstances - Applicant dismissed for involvement in establishment of rival union - Conclusion open to reasonable employer - Dismissal justified - Claim for redundancy compensation and arrears of holiday pay dismissed - BREACH OF CONTRACT - Counterclaim - As counterclaim conditional on finding applicant entitled to redundancy compensation, not taken further by Authority - Union organiser
Result: Application granted (Disadvantage) ; Reimbursement of lost wages (Quantum to be determined) ; Compensation for humiliation etc ($5,000 reduced to $2,000) ; Application dismissed (Dismissal, Arrears of holiday pay, Redundancy) ; Counterclaim dismissed ; Costs reserved
Ford v General Storage Ltd
10 Sep 2007, R Arthur, AA 277/07, (13 pages)
UNJUSTIFIED DISMISSAL - Whether dismissed or resigned - Applicant alleged dismissed after providing medical certificate stating unable to work for month due to depression and stress - Applicant subject to probationary period - Altercation over applicant’s suitability for role and provision of training - Applicant talked about leaving job and seeing doctor - Left premises and obtained medical certificate - Respondent responded to certificate with letter stating trial period had ended with applicant’s resignation - Also stated applicant would not be offered permanent position - Applicant emotionally distressed during altercation and more likely than not did say would no longer work for respondent - However given applicant left in “very worked up state” and medical certificate provided shortly after, respondent should have acted with caution to ensure resignation genuine - No evidence respondent made further enquiry of applicant - Letter referring to end of trial period equivocal as to whether resignation occurred - Having not allowed cooling off period, letter “sent away” applicant in manner that amounted to dismissal - Dismissal unjustified - UNJUSTIFIED DISADVANTAGE - Failure to allow “cooling off period” or make further inquiry as to applicant’s intentions amounted to unjustified disadvantage - Remedies - Global award of compensation ; Reimbursement of six months lost wages, less earnings and sick leave - Carpenter
Result: Application granted ; Reimbursement of lost wages and benefits ($14,953) ; Compensation for humiliation etc ($5,000) ; Costs reserved
Forsyth v TelstraClear Ltd
15 Oct 2007, L Robinson, AA 320/07, (18 pages)
COMPLIANCE ORDER - GOOD FAITH - Applicant sought order requiring respondent to comply with alleged agreement for incentive payment - Respondent claimed no agreement as various conditions for payment not met - Employment agreement did not provide for bonus for partial year’s service - However, HR able to give approval for payment to applicant outside terms - On last day of employment details of bonus still being finalised - Manager submitted proposal to applicant, who asked that it be put in writing - Before he received fax applicant informed respondent he had given media interviews and articles would run following day - HR stopped fax being sent - Rescinded offer on basis it was conditional on compliance with employee duties and talking to media breached company policy - Conditions not expressly mentioned during negotiations - Payment entirely discretionary – Whether discretion exercised in accordance with good faith - Authority found HR vetoed payment yet parties discussed matter in terms of contract law - HR had not relinquished ultimate authority over bonus payment - Applicant aware discussion with manager could only result in recommendation and would require final HR approval - Condition offer be in writing came from applicant - As no letter sent, no actual offer made - Respondent’s concerns about articles real and genuine - Interview given while employee, date of publication irrelevant - Applicant should not have given interviews in circumstances - Initial proposal to pay bonus outside terms of employment agreement made in good faith - Applicant did not act in good faith as deliberately concealed media interviews and aware actions relevant to decision to reward performance - Parties agreed to discretionary bonus and not for Authority to interfere with exercise of discretion - HR veto of payment did not fall to be scrutinised by way of challenge to reasonableness - UNJUSTIFED DISADVANTAGE - Also alleged failure to pay was unjustifiable punishment and sought compensation - Exercise of discretion, not action by respondent - No personal grievance - Manager
Result: Application dismissed ; Costs reserved
Gray v The Chief Executive Department of Corrections
27 Aug 2007, P R Stapp, WA 120/07, (8 pages)
UNJUSTIFIED DISADVANTAGE - Applicant alleged disadvantaged by manager’s comments when respondent reviewed organisational structure - Told by other management not to take too much from alleged comment - Applicant claimed also disadvantaged by failure to provide job description and further information on proposal - Had sought mediation but respondent considered this premature as process till under consultation - Applicant’s position disestablished and he applied for new role - When advised external candidate to be appointed applicant initiated review - Independent review recommended applicant’s suitability be reassessed - Reassessment reached same conclusion - No reason to regard it as other than fair and objective - Lack of prescribed change management process not ideal but not fatal to respondent - Understandable applicant had concerns about treatment given length of process, lack of job descriptions and blurred criteria used to assess vacancy - However, no sufficiently serious breach to give rise to personal grievance - No disadvantage - Senior advisor
Result: Application dismissed ; Costs reserved
McMillen v Pilates Plus Ltd
3 Sep 2007, P Cheyne, CA 109/07, (12 pages)
UNJUSTIFIED DISMISSAL - Applicant employed by pilates studio while his wife ran a gym -Respondent dismissed applicant when concluded he was involved in gym and in breach of terms of employment agreement and duty of fidelity - Previous owner of pilates studio aware of wife’s business but did not consider it a conflict of interest - Nothing in information available to respondent to cast doubt on applicant’s statement not actively involved with wife’s business - Nature of business had not changed since first owner considered no competition - No evidence limited involvement in gym adversely affected performance of duties for respondent - No evidence of applicant abused position to advantage of gym, or of any risk to respondent’s business - No breach of duty of fidelity - No breach of express or implied terms so no basis for dismissal - Dismissal unjustified - Remedies - Lost wages attributable to establishment of own business rather than dismissal - Unjust to require respondent to subsidise establishment of competing business - COUNTERCLAIM - Claim for penalty for breach of good faith could not succeed as no attempt to relate facts to s4A Employment Relations Act 2000 - No breach of employment agreement arising from applicant’s dealing with client - Counterclaims dismissed - Non publication order relating to personal evidence regarding client - Pilates instructor
Result: Application granted ; Compensation for humiliation etc ($5,000) ; Counterclaims dismissed ; Costs reserved
Park v K & C Howick Ltd t/a Howick Kim's Club & Anor
14 Aug 2007, D King, AA 247/07, (14 pages)
UNJUSTIFIED DISMISSAL – Redundancy - Proceedings complicated by applicant’s large investment or loan to first respondent – Matter outside Authority’s jurisdiction but coloured employment relationship - Identity of employer – Part of first respondent sold to second respondent and director agreed to second staff to second respondent – Applicant remained employee of first respondent but should have been informed of sale and consulted about “secondment” – Directors suggested applicant look for new employment but would continue to pay PAYE to help him meet residency requirements - No instruction not to come to work – Duties removed from applicant and pay stopped – Applicant alleged after unsuccessful mediation approached by “gangsters” who demanded problems be resolved without recourse to Courts – Authority accepted he felt intimidated but no evidence they were in fact gangsters, or hired by director to intimidate applicant – Applicant later dismissed when position disestablished – Clear much of work related to applicant’s role ceased to exist well before notification of possible redundancy – Failure to notify and discuss situation breached good faith, as did failure to discuss “secondment” – Later attempts at consultation a sham - Dismissal unjustified – UNJUSTIFIED DISADVANTAGE – Reason for failure to pay wages never made clear – Difficult to escape conclusion failure related to poor relationship between parties – Applicant unjustifiably disadvantaged – Failure by respondent to appropriately deal with situation that arose in workplace also constituted disadvantage - Remedies – No lost wages as work disappeared – Global award of compensation – Contributory conduct 25 percent - ARREARS OF WAGES AND HOLIDAY PAY – Arrears of holiday pay due and owing – Respondent deducted amounts equal to applicant’s PAYE from loan repayments – Deductions not agreed but as matter unrelated to employment Authority could not order reimbursement - PRACTICE AND PROCEDURE - First respondent placed in liquidation after investigation meeting – Registrar of Companies accepted applicant’s objection to removal of company from Register on basis it was party to legal proceedings - Marketing Manager
Result: Application granted ; Compensation for humiliation etc ($4,000 reduced to $3,000) ; Arrears of holiday pay ($2,726.73) ; Costs reserved
Scoles v Nga Clarke's Ltd t/a Black Swan Tea Rooms & Motels
7 Aug 2007, P Montgomery, CA 93/07, (11 pages)
UNJUSTIFIED DISMISSAL - Whether dismissed or abandoned employment - Discontent between employees, including applicant, and supervisor led to employees taking unauthorised break - Respondent claimed instructed employees to return to work, otherwise “may as well go home” - Applicant left premises but claimed expected to return to work next day - Respondent later told her she had “sacked herself” by walking off - Circumstances did not fall under abandonment provisions in employment agreement - Respondent submitted failure to follow instruction to return to work provided justification for termination - Clear at time employment ended respondent relied on applicant’s leaving work rather than refusal to obey instruction - Fair and reasonable employer would have investigated why applicant left premises before considering penalty - Dismissal unjustified - Remedies - Contributory conduct 20 percent - Ability to recover lost wages limited as applicant had already given notice of resignation - UNJUSTIFIED DISADVANTAGE - Applicant alleged hours unilaterally reduced - Respondent contended hours reduced by agreement due to applicant’s pregnancy - No evidence to support unilateral change to hours - No unjustified disadvantage - SEXUAL HARASSMENT - Applicant claimed respondent did nothing when she complained about male employee staring at her breasts - Respondent claimed spoke with employee and informed applicant of this by letter - Respondent addressed matter appropriately - However, by not confirming letter received, applicant left with view nothing done - Applicant disadvantaged by failure but it fell short of being unjustifiable - Hospitality worker
Result: Application granted (dismissal) ; Compensation for humiliation etc ($3,000 reduced to $2,400) ; Application dismissed (Disadvantage, sexual harassment) ; Costs reserved
Smillie v Forrester Furniture 2006 Ltd
5 Sep 2007, J Scott, AA 274/07, (9 pages)
UNJUSTIFED DISADVANTAGE - No appearance by respondent - Applicant resigned and prepared record of all wages owing - However respondent did not settle up arrears and subsequent payment incomplete - Respondent also presented applicant with bill for purchases made from store at prices higher than allegedly agreed to - When applicant raised personal grievance, respondent contacted police alleging number of items stolen and search warrant executed at applicant’s home - Applicant submitted all items either obtained legitimately or never in her possession - Applicant’s evidence accepted - However, although complaint to police and subsequent search caused applicant much distress not an unjustifiable action that affected employment as occurred after she resigned - Other matters raised by applicant more appropriately dealt with as arrears claim - No unjustified disadvantage - ARREARS OF WAGES AND HOLIDAY PAY - Applicant’s evidence of arrears owing accepted - Arrears due and owing - Although applicant accepted owed some money to respondent for staff purchases no written authority for deductions to be made from wages - Authority accepted applicant would settle account - Shop assistant
Result: Applicant granted (Arrears) ; Arrears of wages and holiday pay ($623.61) ; Expenses ($79.97) ; Application dismissed (Disadvantage) ; Costs in favour of applicant ($1,000)
A v Auckland City Council
29 Sep 2008, J Wilson, AA 342/08, (14 pages)
UNJUSTIFIED DISADVANTAGE – RAISING PERSONAL GRIEVANCE – Whether grievance raised within 90 days - Applicant claimed disadvantaged in employment due to sexual harassment victimisation and bullying by colleague (“Z”) – Applicant propositioned by Z for sex and claimed that after incident Z used position to bully and victimise applicant – Applicant did not report incident nor allegations of bullying until five years after incident occurred - Authority found grievance not raised within 90 days – Disadvantage grievance dismissed - UNJUSTIFIED DISMISSAL – Redundancy – Applicant claimed Z played major part in applicant’s redundancy – Respondent developed new management strategy – Two new positions replaced applicant’s position – Authority found new positions substantially different from applicant’s old position – Respondent told applicant to apply for new positions – Applicant believed was deliberately excluded from applying for positions due to minimum requirements advertised and not encouraged to apply – Applicant raised grievance, and communications became more formal – Authority found incident coloured relationship between applicant and Z – However, found Z did not play role in final redundancy decision – Found full consultation took place – Applicant genuinely redundant and process fair – However, Authority found way defendant managed applicant’s departure fell short of what fair and reasonable employer would have done – Found defendant did not meet obligation under s1A(b) Employment Relations Act 2000 to be constructive and communicative – Found although applicant did not seek defendant’s advice on applying, applicant should have been fully informed and supported throughout process – Dismissal unjustified - Remedies – No contributory conduct – Due to respondent’s inaction, applicant suffered stress, hurt and humiliation greater than would otherwise have suffered – Compensation appropriate
Result: Application granted (dismissal) ; Compensation for humiliation etc ($6,000) ; Application dismissed (disadvantage) ; Costs reserved
