Employment Court keeps mediations confidential…

A recent decision of the Employment Court refused to allow an employee to challenge an Employment Relations Authority decision that had refused to allow her to call evidence of what occurred at mediation.

The mediation process is protected from disclosure.  The employee wanted to call evidence of what took place at mediation to show bad faith by the employer. 

The ERA ruled this evidence out and the Employment Court agreed. 

To allow it in would seriously undermine the value of mediations where participants need to know that what they say is protected from being used against them.

Alan Knowsley

7 warnings did not make dismissal justified where the process was badly wrong…

An employee has succeeded in his personal grievance claim for unjustified dismissal in the Employment Relations Authority.

The employee had received seven warnings for poor performance and was dismissed on the eighth occasion.  However, the employer got every part of the process wrong.

It:

1)      Suspended the employee without any opportunity to give input before the suspension.

2)      Did not tell the employee it was investigating allegations.

3)      Did not give enough detail of the allegations to enable the employee to respond adequately.

4)      Failed to issue any warnings about the first 3 allegations until after four more alleged incidents.

5)      Then issued seven warnings without raising any of the 4 new allegations with the employee.

6)      Dismissed the employee without any investigation of the eighth incident.

7)      Did not tell him it was investigating the 8th allegation.

8)      Did not give him any opportunity for a support person.

9)      Did not take his explanations into account.

All the warnings, the suspension, and the dismissal were held to be unjustified, and the employee was awarded his lost wages and $10,000 compensation for the hurt and humiliation suffered from the poor processes.

The bottom line: 7 warnings done incorrectly did not make dismissal for the 8^th incident justified.

 

Alan Knowsley

Voluntary resignation during disciplinary process prevents claim…

An employee has lost his constructive dismissal claim in the Employment Relations Authority.  The employee was being investigated for theft of company property.  During the investigation meeting the employee’s representative suggested he be allowed to resign rather than be dismissed for theft. 

The employer agreed and a resignation was written up by the employee.

The employee then brought a claim alleging the employer constructively dismissed him by threatening termination.  The ERA held that the offer of resignation came from the employee’s representative, and not from the company, and so was not improper pressure to resign.  As the employee had been allowed to resign he could not bring a claim alleging he was dismissed.

 

Alan Knowsley

Employee ordered to pay over $58,000 for breaches of employment agreement…

The Employment Relations Authority has penalised a worker found to be in breach of his employment agreement.  The employee had a gripe against his employer so began operating in competition (website design) and approaching his employer’s customers for contract work while still employed.

A total of 263 breaches were discovered.  The ERA ordered a penalty of $50,000 plus over $8,000 costs. The fundamental obligation not to act in competition with the employer does not have to be specified in the agreement to be enforced.

If your employee is acting in breach of their employment agreement then you can take action to stop them and recover damages before they cause irreparable damage to your business.

Alan Knowsley

Having a policy of no sexual harassment not enough…

In a case where the employee brought a personal grievance for constructive dismissal the Employment Relations Authority has held that the employer breached its duties to the employee despite have a policy against sexual harassment…

The ERA held that the employer had:

(i)            No material outlining what could amount to sexual harassment;

(ii)           No induction process that covered the sexual harassment policy;

(iii)          No other educational process regarding sexual harassment; and

(iv)          No regular reminders of the policy.

In this case the breach did not cause the employee’s resignation as she failed to alert the employer to the harassment prior to her resignation.  The employer had no opportunity to investigate and take steps to prevent any reoccurrence.

Having a policy is not enough.  It has to be clear, educative, brought to the employee’s attention and reinforced on a regular basis.

If you need help with working up a policy, or the process to reinforce it, please give me a call on (04) 473 6850.

 

Alan Knowsley

Employment ends upon death of employer...

The Employment Relations Authority has denied an unjustified dismissal claim from an employee following the death of his employer.

The Authority held that as the agreement was with the employer personally it came to an end on his death and so there was no dismissal of the employee.

 

Alan Knowsley

$211,000 back wages & penalties ordered…

The Employment Relations Authority has upheld claims brought by the Labour Inspectorate against an employer with three retail outlets.

Employees were not provided with employment agreements, were not paid holiday pay and were not paid the minimum wage.

Penalties of $60,000 were imposed for breaches of the minimum wage and holidays requirements.  A penalty of $55,000 was imposed for not providing employment agreements.  Wages and holiday pay of $96,000 were also awarded.

If you need help getting your employment obligations correct please give me a call on (04) 473 6850.

 

Alan Knowsley

Sexually harassed at work but no compensation…

A woman who has been found by the Employment Relations Authority to have been sexually harassed on multiple occasions has failed in her personal grievance claim for constructive dismissal.

The ERA accepted her claims of unwanted sexual comments from co-workers but did not make a finding against her employer because she had failed to alert her employer to the abuse until her resignation letter.  The employer, therefore, had no opportunity to put a stop to the behaviour and was not responsible for the other employees’ actions.

If you need help bringing concerns to your employer’s notice please call me on (04) 473 6850.

 

Alan Knowsley

90 day trial provision ineffective…

An employee has succeeded in her personal grievance claim for unjustified dismissal.   She had been working for just under three months when she was given a three month employment agreement with a 90 day trial period.  She signed the agreement and was fired the next day.

The Employment Relations Authority had no trouble finding that the three month fixed term contract was not lawful as no genuine reason was given for the fixed term.  In addition the 90 day trial provision was not lawful as the employee was already employed.

Lost wages of $6,656 and compensation of $6,000 was awarded.

If you need help getting your employment agreements right please give me a call on (04) 473 6850.

 

Alan Knowsley

$80,000 awarded for unjustified dismissal…

An employee has succeeded in his personal grievance for unjustified dismissal after he was sacked for “slacking off” and giving company information to the opposition.

The Employment Relations Authority held that there had been no disciplinary process and the dismissal was unfair.  It awarded lost wages of $72,000 plus interest and compensation of $8,000.

Another issue in the case was the employer’s claim that it was not the employer, and that the employee was employed by another company that it contracted with. 

The employer could not provide any proof of this employment arrangement and the ERA held that it had done nothing to inform the employee that he was not employed by them in over three years of employment.

 

Alan Knowsley

Failure to consult on redundancy costs employer 4 months wages…

The Employment Relations Authority has upheld a personal grievance for unjustified dismissal following a redundancy.  The employee was a part-time shop assistant and was advised that her position and another part-time position were both being disestablished and one full-time position established.  There was no consultation before the decision was announced.

The ERA awarded four months lost wages plus $6,000 compensation for the upset felt by the employee.

If the employer had presented the staffing changes as a proposal and sought feedback before reaching its decision it could have saved itself lots of money and disruption.  The hasty attempt to save costs backfired due to the poor process adopted.

If you need help getting the redundancy process right please call me on (04) 473 6850.

 

Alan Knowsley

Employee ordered to pay for failure to work out notice…

The Employment Relations Authority has upheld an employer’s claim to be paid for an unworked period of notice.

The employee was required to give six weeks notice.  Two weeks into the six week period the employee advised they would not be working any longer.

The ERA ordered the employee to pay the employer $3,400 for the unworked notice period plus costs.

Notice periods work both ways.  If you need help enforcing your employment agreement please call me on (04) 473 6850.

 

Alan Knowsley

Redundancy process required even if business not viable...

A recent Employment Relations Authority decision has upheld a personal grievance claim over an employee’s redundancy. 

The employer decided the business was not viable and would close.  All the staff were advised they were being made redundant.  The employer failed to discuss the position with the staff before the final decision to shut was made and failed to give the staff an opportunity to comment on the situation.  This amounted to a breach of good faith and an award of $4,500 compensation for the breach of process.  No lost wages were awarded as the redundancy was genuine and the employee would have lost their job anyway.

If you need help getting the redundancy process right please give me a call on (04) 473 6850.

 

Alan Knowsley

Worker dismissed after work injury awarded lost wages and compensation…

The Employment Relations Authority has upheld a personal grievance claim for unjustified dismissal. The employee was injured at work but was ordered by his boss to keep working.  When he refused he was told, “F… off you’re fired”.  He was told to hand over his keys and was left at the job site with no transport back to the workplace.

When he contacted his employer to ask for his final pay he was told he had abandoned his employment and the employer was going to come to his house and beat him up.

The ERA confirmed that he had been fired, had not abandoned his employment, and a threat of a beating would have been a constructive dismissal if he had not already been fired.

The ERA awarded all lost wages plus $5,000 compensation. 

If you need help dealing with workplace injuries, disciplinary processes or an unjustified dismissal please give me a call on (04) 473 6850.

 

Alan Knowsley

Transfer of employee to new employer goes wrong…

The Employment Relations Authority has upheld personal grievance claims by an employee against both her former employer and her new employer after the sale of a business.

The employee was told by her old employer that her job was safe.  She was told by the new employer that she was not required.  The ERA held that her old employer had a duty to correctly advise her on whether or not she was required by the new employer.  The new employer unjustifiably dismissed the employee without a proper process.  Even though they did not want her to remain they did pay her for three days work after they took over the business and then dismissed her without any process.

The employers were ordered to each pay $6,000 to the employee for lost wages and compensation.  Transferring of employees on a business sale can be tricky.  If you need help please give me a call on (04) 473 6850.

 

Alan Knowsley

$12,000 award for unjustified dismissal due to poor process…

An employee’s personal grievance has been upheld by the Employment Relations Authority because the employer failed to follow the process set out in the employment agreement.

The employer failed to advise the employee of:

(i)            The details of the alleged misconduct;

(ii)           The right to a support person.

The employer failed to give an opportunity to explain and did not properly investigate the allegations.

The employee was awarded over $4,000 lost wages and $8,000 compensation.

If you want to dismiss for misconduct you must act fairly and get the disciplinary process right.  If you need help please give me a call on (04) 473 6850.

 

Alan Knowsley

Employee awarded $9,000 after one month's work...

An employee took a personal grievance for unjustified dismissal to the Employment Relations Authority.  The employee was only employed for one month when she was told the employer was not making enough money to pay her or keep her on.

Five days after she was dismissed she saw advertising from the company to fill her role.

The ERA awarded her $1,500 unpaid wages, $5,265 lost wages and $2,000 compensation plus holiday pay.

Any redundancy must be for genuine reasons and needs to follow a fair process, with opportunities to comment on the proposal before a decision is finalised.

If you need help with the redundancy process please call me on (04) 473 6850.

 

Alan Knowsley

Worker dismissed for give aways to staff…

The Employment Relations Authority has upheld the dismissal of a senior staff member who gave away some of the company’s services to another staff member as a reward for exceptional service after the Christchurch earthquakes.

The employer discovered the gift and dismissed the employee of 16 years.  They had no authority to make such gifts and had not sought any permission to do so.

The ERA held that although a dismissal was at the harsh end of the scale of outcomes, it was still a decision a reasonable employer could make.

 

Alan Knowsley

Authoritarian and dictatorial Principal loses reinstatement application…

The Employment Relations Authority has rejected a personal grievance claim for unjustified dismissal of a school principal by the school’s statutory manager.

The principal was advised that he was not dealing appropriately with the school community and failing to undertake meaningful consultation.  His relationship with the school and wider community had broken down.

The ERA held that the principal’s failure to accept any personal responsibility for the situation contributed to the dismissal of his claim.  He displayed an inability to develop wholesome relationships with those around him including a succession of employing bodies.

 

Alan Knowsley

Casual worker on 3 month trial held to be permanent full timer…

The Employment Relations Authority has upheld a personal grievance claim for unjustified dismissal of a worker sacked under the 90 day rule.

The ERA held that there was no employment agreement provided to the worker until at least one month after she commenced work and so the 90 day rule could not apply to her.  She had been employed for the month and the 90 day rule can only apply to employees never before employed by that employer.

In addition the ERA held that the employee worked regular hours and was not a casual employee on no fixed hours.  Lost wages of $8,100 plus compensation and costs were awarded.

If you need help getting your employment agreements right please call me on (04) 473 6850.

 

Alan Knowsley

Earthquake – An Emergency? Yes. Extra Pay? No

The Employment Relations Authority has declined a claim for emergency call out payments to staff at Lincoln University following the Christchurch earthquakes.

The call out clause required both an emergency and a call out.  It was accepted that the earthquakes were an emergency but as the staff were performing work during their normal working hours the “call out” requirement was not met.  Staff were paid their normal pay and not the call out allowance.

 

Alan Knowsley

Employee's dismissal for acting in competition upheld...

The Employment Relations Authority has dismissed a personal grievance for unjustified dismissal by a security guard.

The guard had set up a company and wrote to potential clients (including a current client of the employer) offering security services.

The employer was alerted by the client and carried out a disciplinary investigation.

The ERA held that the guard was acting in competition and there was no consent from the employer.  The ERA also found that the employer fairly raised the allegations and gave the employee an opportunity to answer them.  The responses were taken into account and a reasonable employer could dismiss for competing with the employer.

 

Alan Knowsley

Poor disciplinary process results in constructive dismissal...

An employee has won her personal grievance claim for constructive dismissal.  The employee was subjected to a disciplinary investigation following an incident at work.

During the investigation other staff came forward alleging similar prior incidents, but these were never put to the employee.  The Employment Relations Authority held that the failure to properly investigate the other incidents, while relying on them in the present investigation, was unfair and no warning should have been given to the employee.

The ERA also held that it was unfair to require the employee to work with the employee who had complained, as this was not a safe situation to put her in.  This led to the employee’s resignation and it was held that this amounted to a constructive dismissal.

The employer was ordered to pay two months lost wages and $10,000 compensation.

If you need help getting the disciplinary process right please call me on (04) 473 6850.

 

Alan Knowsley

Employee challenges “full and final” settlement 4 years later…

An employee who settled a personal grievance claim four years ago has filed a claim alleging that she was not mentally fit to enter into the agreement when she signed it.  She sought an additional $50,000 compensation from her employer.

The Employment Relations Authority concluded that there was no evidence that the employee was forced into the agreement, that it was not unfair and that she had been represented throughout the negotiations.  Her mental state had not been raised at the time by her or her representative.  The ERA declined to allow her to bring her new claim.

 

Alan Knowsley

Once again poor process costs employer…

An employee has won his personal grievance claim for unjustified dismissal after he was sacked for deliberately not doing his job.

The employee was loading a truck with a large order.  He completed most of the task but some of the order was not where it was supposed to be stored.  He located the missing goods in another part of the warehouse, but could not be bothered moving them to the truck.  The order went out only partially complete.

The employer conducted a disciplinary investigation, but did not tell the employee of his right to a support person before the meeting.  It told him at the meeting, but this was too late to allow him to organise a representative and to prepare for the meeting.

The employer also did not tell the employee what parts of its House Rules he was alleged to have broken or that he could be dismissed if the allegation was found to be correct.  The employer also did not treat the employee consistently with others and a written warning would have been sufficient.  Because of these failings the dismissal was unjustified and the employee was awarded 20½ weeks lost wages and $4,000 compensation.  This was reduced by 40% due to the employee’s actions.

If you need help getting your disciplinary process right, please give me a call on (04) 473 6850.

 

Alan Knowsley

Fine reduced to $22,000 for injury to worker but no reparation sought…

A company was convicted for Health & Safety breaches and fined.  The employee had fallen and fractured his heel when a forklift he was standing on tilted forward.

The Court held that the accident was foreseeable and easily avoided.  The injury was minor to moderate.  The fine would have been $70,000 but was reduced due to the company’s early guilty plea, remorse, steps to prevent a recurrence, support for the employee, and its poor financial position.  The employee did not seek reparation and was supportive of his employer.

Even with all the support from its employee, and reductions due to steps taken, the fine was still $22,000 which is a significant cost.

If you need help getting your Health & Safety procedures right please give me a call on (04) 473 6850.

 

Alan Knowsley

Solid Energy fined $71,000 plus reparation of $46,000…

The State-Owned coalminer has been convicted of breaching Health & Safety standards following one of its miners being crushed by a large fall of coal.

The Court held that Solid Energy had failed to adhere to its own safety standards which resulted in the accident.  The employee was left with permanent arm and spinal injuries which prevent him working.

The court imposed a fine of $71,000 plus the reparation of $46,000 after taking into account the guilty pleas, remorse, and post-accident efforts to improve its systems.

If you need help getting your Health & Safety procedures right please call me on (04) 473 6850.

 

Alan Knowsley

Dismissal costs employer over $155,000…

The Employment Relations Authority has upheld a personal grievance for an unjustified dismissal and ordered the employer to pay $122,800 wages, $22,000 holiday pay, interest, and $10,000 compensation.

The employee was told by the Managing Director to pay out bonuses to himself and other employees, and he carried out those instructions.  Unfortunately, this left the company short of funds to pay other liabilities.  The company accused him of serious misconduct and dismissed him.

The ERA held that they failed to investigate the allegations before he was dismissed and he had no opportunity to comment on the concerns.

If you need help getting your disciplinary processes correct please give me a call on (04) 473 6850.

 

Alan Knowsley

Sacking of Manager who forged safety documents upheld...

The Employment Relations Authority has rejected a personal grievance claim for unjustified dismissal.  The Manager was responsible for completing a daily checklist of safety checks and reporting on these monthly. 

When the employer asked for the month’s forms he was told they could not be located.  The next day some substitute forms were produced.  The employer then discovered the booklet of proper forms but they were all blank.

After a proper disciplinary investigation the Manager was dismissed for these serious Health & Safety breaches and also for falsifying the company records.

If you need assistance with getting the disciplinary process right please call me on (04) 473 6850.

 

Alan Knowsley

$241,000 reparation following employee’s death…

An employer has paid almost ¼ million dollars in reparation to the family of one of its employees who drowned while at work.  His lifejacket failed to inflate because the gas canisters had been used previously and not replaced.

The Court held that the employee had a high culpability for the employee’s death and this was accepted by the employer.  The only reason a substantial fine was not imposed was because the employer was the NZ Defence Force and the Crown cannot fine itself.

The case is a timely reminder to get your Health & Safety practices sorted before there is a tragedy.

 

Alan Knowsley

Emailing the town about employee’s behaviour results in $3,000 award…

The Employment Relations Authority has upheld a personal grievance claim for unjustified dismissal.

The employee had stormed out of work and threatened to bad-mouth the employer.  The employer got in first and sent an email around the town making allegations about the employee’s behaviour. 

The ERA held that the employee was unjustifiably dismissed and set the award of damages at $4,000.  This was reduced by 25% to $3,000 because of the employee’s behaviour that started the whole process.

No lost wages were awarded because the employee had made no effort to find other work.

If you need help getting the disciplinary process right please call me on (04) 473 6850.

 

Alan Knowsley

Teacher made redundant on basis of incorrect information…

The Employment Court has upheld a personal grievance claim for wrongful dismissal after a redundancy process at a preschool.

The employer presented information to the employee about the need to cut costs by making her position redundant.  However, the information overstated the savings to be made as the school employed two new employees to undertake the senior teacher’s duties, reducing the savings considerably.  The teacher had offered to take a pay cut, which if accepted would have achieved the same savings.

The Court ordered payment of lost wages of $14,300 and compensation of $7,000. 

If you need help getting the redundancy process sorted please call me on (04) 473 6850.

 

Alan Knowsley

Making his brother redundant costs employer $22,000…

The Employment Relations Authority has held a redundancy decision to be an unjustified dismissal after an employee brought a personal grievance against his brother.

The reason given for the redundancy was that the type of work he was doing was no longer economical and there was no other work for him.  However, the employee learnt that a new employee had been taken on shortly after his dismissal and that the type of work he did was still being undertaken by the company.

In addition to there being no genuine reason for the redundancy there was also no proper process.  The employee was given no opportunity to comment on the proposal before he was made redundant.  $14,000 lost wages and $8,000 compensation were awarded.

Even with family members you need to get the process right.  If you need help please call me on (04) 473 6850.

 

Alan Knowsley

Kiwi Saver- Employer contribution on top of minimum wage...

The Court of Appeal has upheld the Employment Court decision that employer contributions have to be paid on top of the minimum wage. It is not lawful to include the employer contribution in a total remuneration package unless that is higher than the minimum wage by the amount of the employer contribution.

Employer ordered to pay almost $400,00 after accident…

The company pleaded guilty to two charges of failing to ensure the safety of its employees and employees of a contractor.

One employee was killed, and three other people suffered significant injuries, after there was a failure to follow the company’s health and safety procedures and an explosion of a water pipe resulted.

The company was fined $81,000 and ordered to pay reparation to the victims of $315,000.

You need to ensure that procedures you have in place are being adhered to each and every time.  If they had been followed here the loss of life and severe injuries would not have occurred.

 

Alan Knowsley

Dismissal unjustified after settlement agreement changed…

An employee’s personal grievance for unjustified dismissal has been upheld by the Employment Relations Authority.

The parties had a falling out and met to try to reach agreement.  A settlement agreement was drawn up and agreed.  When the typed agreement was then later presented to the employee to sign it contained new clauses not previously discussed.  The employee refused to sign.

The employer proceeded on the basis that the employee had agreed to resign.  The ERA held that there was no resignation.  The new clauses were never agreed so the resignation never took effect.  Five weeks wages plus $2,000 compensation were awarded.

If you need help sorting out employment differences please call me on (04) 473 6850.

 

Alan Knowsley

Safety guard not fitted costs employer $67,000…

An employee suffered a nasty injury when they tried to unblock a machine that had jammed.  A guard had been supplied with the machine to prevent this happening but had not been fitted to the machine, and was lying nearby.

The Court imposed a fine of $52,000 and ordered $15,000 reparation for this serious breach of Health & Safety standards.

If you need help getting your Health & Safety Practices correct please call me on (04) 473 6850.

 

Alan Knowsley

Over $38,000 awarded for bullying by sexual “banter”…

The Employment Relations Authority has upheld a personal grievance claim for unjustified dismissal of a young male worker subjected to repeated “banter” of a sexual nature from his co-workers and boss.

The employer questioned the young employee in front of others about his sexuality and he was also asked if he was gay.  When he asked the employer to stop he was told, “If you don’t like it here, p*** off”.  The employee walked out, and brought a constructive dismissal claim. 

The ERA has awarded $12,000 compensation for the abuse, plus over $23,000 in wages and $3,500 costs.

The abuse went beyond the bounds of reasonable banter and resulted in the employee suffering physically and emotionally and requiring medical help. 

If you need help dealing with bullying in the workplace give me a call on (04) 473 6850.

 

Alan Knowsley

Refusing to participate in disciplinary process leads to dismissal…

The Employment Relations Authority has dismissed a personal grievance claim for unjustified dismissal where one of the grounds for dismissal was the employee’s refusal to take part in the disciplinary process.

The ERA has confirmed that employees have a duty to communicate with their employers even during a disciplinary process, and a refusal to take part cannot be “appropriate” conduct, and in part justified the dismissal.

The employee had also refused to undertake their normal duties during the disciplinary process and this was also held to justify their dismissal.

If you need help handling a disciplinary investigation give me a call on (04) 473 68850.

 

Alan Knowsley

 

Dismissal following “Mystery Shopper” held unjustified…

The Employment Relations Authority has upheld a personal grievance for unjustified dismissal of a mobile salesperson.  The employer engaged a mystery shopper to approach the sales truck and seek to make a cash purchase. 

The salesperson made the sale but did not complete any paperwork because there were no forms or procedures for cash sales.  He called his manager who arranged to show him later that day what paperwork to complete.

When the salesperson arrived to meet his manager he was sent away.  The manager was dismissed for unrelated events so the salesperson never got the opportunity to be shown how to do the cash sale.

The employer then investigated the failure by the salesperson to complete the paperwork and dismissed him.

The ERA held the dismissal to be unjustified because:

(i)   The employer failed to disclose during the disciplinary process that the customer was a “mystery shopper” and the employer therefore failed in its obligation of honest and open communication.

(ii)   The company did not have a form for cash sales and therefore the employee could have been confused as to what to do.  His explanation of seeking to learn the process from his manager should not have been ignored (or disbelieved).

(iii)  Company policies had not been finalised or brought to the employee’s attention.  If you are seeking to discipline a staff member for not following company procedures then you need to ensure your policies are formalised, brought to employees’ attention, and cover the situation you are concerned about.  The employer did none of these things and also failed to be honest in its disciplinary investigation.

If you need help give me a call on (04) 473 6850.

 

Alan Knowsley.

$71,000 penalties after worker injured…

A worker was injured operating a machine that she had not worked on before.  Her clothing got caught in a drill that pulled her hand into the machine.  The guards on the machine were not sufficient to prevent the accident.

The Court confirmed that the $20,000 reparation paid was appropriate, but imposed a fine of $51,000 for health and safety breaches in the failure to identify the hazard and eliminate or isolate the hazard.  The fine would have been $85,000 but for the early guilty plea and mitigating factors such as remorse, steps to prevent a recurrence, apology and cooperation.

If you need help identifying hazards in the workplace and putting in plans to eliminate, isolate or minimize the hazards, give me a call on (04) 473 6850.

 

Alan Knowsley

Company penalised $20,000 for failure to provide information…

The Employment Court has upheld penalties totalling $20,000 for an employer’s repeated failures to provide wages and entitlements information to its employees and their new employer.

The employer lost a contract for food provision and its employees automatically transferred to the new provider.  Just before the transfer the employer increased the wages and entitlements of some of its employees which had the effect of putting up the new employer’s wage bill.  In a separate action the new employer successfully sued the previous employer over this action.

Half of the penalties imposed will go to the employees concerned and half to the Crown.

If you need help complying with your obligations as an employer to provide information give me a call on (04) 473 6850.

 

Alan Knowsley

$750 penalty for breach of confidentiality…

An employee who breached the confidentiality provision of a mediation has been penalised $750 by the Employment Relations Authority but still gets to keep their mediated settlement.

The mediation had resulted in the employee’s dismissal being replaced with his resignation and a small cash settlement plus some costs reimbursements.  When the employee returned from the mediation to his new workplace he advised that he had won his case and was not sacked and had received a payment.

All of these statements were held to breach the obligation to keep the settlement confidential.  The $750 payment is payable to the Crown not his ex-employer so they have lost the confidentiality of settlement and ended up paying the employee his agreed payment (before they knew of the breach).

If you need help getting your settlements worded to cover breaches of confidentiality with enough teeth to make them meaningfully enforceable give me a call on (04) 473 6850.

 

Alan Knowsley

Principal sacked for failing to protect students from abuser...

The Employment Relations Authority has dismissed a personal grievance claim for unjustified dismissal brought by a School Principal against his employer.

The Principal was held to have failed in his duty to protect students from a sexually abusive teacher at the school.

The Principal:

(i)            Either knew or should have known that the teacher was taking students home;

(ii)           Failed to adequately follow up and document actions taken after being warned by the Police of their suspicions;

(iii)          Failed to monitor the teacher’s behavior; and

(iv)          Failed to properly reintegrate the students back into the school.

The ERA held that these concerns were properly investigated and the employer was entitled to regard them as serious misconduct justifying dismissal.

 

Alan Knowsley

Change to employer liability for holiday pay for transferring emloyees...

The Court of Appeal has reversed a High Court finding on who is liable to pay employees for holiday pay when an employee is transferred as a vulnerable employee (catering, cleaning etc).

Until this Court of Appeal decision the position was that the old employer was liable to pay the new employer for the untaken holiday leave of transferring employees. 

The Court of Appeal has held that the old employer has no liability to pay the new employer for pre-transfer entitlements.

This is an unintended hole in the law and legislation is before Parliament to require the old employer to pay the new employer for these holiday entitlements, so the hole may soon disappear.

If you need assistance dealing with your rights or obligation in relation to transferring employees and their leave payments please give me a call on (04) 473 6850.

Alan Knowsley

Labour-hire company and its client both liable for injury to worker….

A worker seriously injured at work has resulted in his employer being fined $25,000 and paying reparation of $15,000.  Also penalised was the company he was hired out to by his employer (where the accident actually happened).  They were fined $20,000 and ordered to pay $25,000 reparation.  The Court held that both parties failed to identify an obvious hazard and take steps to prevent an accident.

If your employees are going onto other work sites you can still be held responsible for accidents at that other workplace.  You need to have systems to identify hazards and deal with them just as much as if it was your own workplace.

If you need assistance with Health & Safety issues give me a call on (04) 473 6850.

 

Alan Knowsley