Failure to put all allegations leads to unjustified dismissal…

A recent Employment Relations Authority decision has found an employee’s dismissal substantively justified following a personal grievance claim, but the procedure followed was unfair and the dismissal therefore unjustified.

The employer fired the employee on the basis of a failure to obey a direct instruction not to enter a part of the workplace.  This particular allegation was not put to the employee as part of the allegations raised.  If it had been, then this would have been serious misconduct and the dismissal justified.  The damages were reduced by 50% because of the employee’s contribution to the situation.

Damages were reduced by a further 50% for other serious misconduct that only came to light after the original dismissal.

If you need help dealing with disciplinary issues give me a call on (04) 473 6850.

Alan Knowsley

Unjustified dismissal of employee going to rival…

An employee has won her personal grievance claim for unjustified dismissal after she resigned to go to a rival business and was then sacked without notice.

There was no enforceable restraint of trade clause and the employer could not prevent the employee going to a rival.  The employer may have had concerns about the employee working out her notice period but this did not justify her dismissal.  The employer should have put her concerns to the employee and given her an opportunity to respond before deciding to take any disciplinary action.

A clause allowing payment in lieu of notice could have been useful in this situation.

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

Alan Knowsley

Dismissal under 90 day trial period fails…

An employee dismissed without notice under a 90 day trial period has won her personal grievance claim for unjustified dismissal.  The employee did not sign her employment agreement with the 90 day trial period until the day after she started work.  Therefore the trial period was not lawful, as she had already been employed for a day when she signed it. 

Trial periods can only apply to employees who have not worked for the employer before (no matter how briefly). 

In addition the employee was dismissed for poor performance without giving her notice under the agreement.

Dismissal without notice is only available for serious misconduct and none was alleged.

Lost wages of over $10,000 plus compensation of $5,000 and costs were ordered.  If you need help putting in place or acting on a 90 day trial period give me a call on (04) 473 6850.

Alan Knowsley

Woman abused during meeting to discuss bullying allegations…

The Employment Relations Authority has upheld a very unusual personal grievance claim for constructive dismissal.  The employee made allegations of bullying by her supervisor, and the employer arranged a meeting to discuss the allegations, but got the process very wrong. 

The employer did not tell the employee that the alleged bully would be present for the discussion, and when the employee objected the employer persuaded her to stay.

The employer then allowed the alleged bully to abuse the staff member during the meeting, and also allowed the alleged bully to abuse the staff member’s mother (who had attended as a support person). 

The employee resigned, claiming a breakdown in the work relationship, and the ERA agreed awarding her lost wages and compensation of almost $7,000.

These facts seem very unusual.  What is even more unusual is that the employer’s HR Coordinator was the person who organised and ran the meeting.  If you need help getting your employment processes right give me a call on (04) 473 6850.

Alan Knowsley

$20,000 compensation for unfair roster changes…

A recent Employment Relations Authority decision has upheld a personal grievance claim for constructive dismissal after an employee resigned following roster changes.

The employee (after childbirth) applied for reduced hours and this was agreed.  She worked these reduced hours for six years. 

The employer then decided to re-organise the section she worked in and wanted her to work a different roster to fit in with other staff.  The employee tried to negotiate but eventually agreed to the new roster as the employer refused to approve her annual leave unless she agreed.  The new roster caused real problems because it conflicted with that worked by her husband (employed by the same employer).

She eventually resigned as a result, and the ERA awarded her three months lost wages and $10,000 compensation for hurt and humiliation.

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

Alan Knowsley

Failure to allow time for independent advice backfires…

An employer recently found out the hard way that taking shortcuts, and not allowing their employee to properly exercise their rights, can have disastrous consequences and result in a personal grievance against them.

The employee was provided their employment agreement but was not advised that they were entitled to take independent advice on the agreement before signing.  In addition they were not provided time to arrange advice even if they had known about it.  They signed their agreement only a few minutes after first seeing it.

The ERA held that there is an obligation to advise of the right to independent advice and to provide the opportunity to get advice.  Note that these obligations apply even if the employee wants to sign immediately.  The opportunity (more than one day is needed) still has to be given.

The employer in this case dismissed the employee under the 90-day clause (whereby an employee cannot bring a personal grievance).  The ERA held that the employer had engaged in unfair bargaining by not giving the opportunity for independent advice and therefore the 90-day trial period could be removed from the contract.

Once this clause was removed the employer had no right to terminate without a proper process.  No process had been followed, therefore the dismissal could be held to be an unjustified dismissal.

The employer became liable for lost wages, damages for hurt and humiliation, plus legal costs (all yet to be fixed, but likely to be substantial).

If you need help getting your employee engagement processes correct or implementing a 90- day trial period termination, call me on (04) 473 6850.

Alan Knowsley

Long term sickness justified dismissal…

A recent Employment Relations Authority hearing has reaffirmed that an employer may dismiss a sick employee after a fair investigation.

The employee brought a personal grievance claim alleging unjustified dismissal.  He was sacked after being on sick leave for several months (with repeated 2-week medical certificates).  The employee failed to allow his doctor and counsellor to discuss matters with the employer, despite a warning that they may have to terminate his employment.

An employer is required to fully investigate the medical incapacity, including the employee’s current state of health, chances of recovery, and expected delay in a return to work.

The employer was suffering operational difficulties from the long absences and was found to have acted reasonably in terminating the employment. 

You do not need to wait until the illness is long term before putting steps in place to manage the issue.  The sooner you get onto the correct process the better.

If you need help managing a potentially long term sickness issue give me a call on (04) 473 6850.

Alan Knowsley

$9,000 for failure to follow a fair process…

The Employment Relations Authority has awarded over $9,000 for unjustified dismissal following a personal grievance claim by an employee who swore at, and threatened, his supervisor and manager, and threw things around the workplace.

If handled correctly this misbehavior could have justified a dismissal, but the employer failed to carry out a fair process.

(i)            It failed to tell the employee of all the allegations.

(ii)           It allowed the supervisor (alleged victim) to carry out the investigation.

(iii)          It did not interview the employee, so he could not give explanations (even if he had known of all the allegations).

(iv)         It did not consider what penalties had been imposed on other employees in past incidents.

(v)          It tried to use prior “warnings” as justification for the dismissal, when no proper process had been followed to justify those “warnings”.

Reinstatement was refused because the employee had a history of bad behavior and disrespect towards management, and a year had passed since the dismissal.

Remedies (originally set at $18,000) were reduced by 50% for the employee’s contributing bad conduct.

Interest and costs were also awarded against the employer, and they would have incurred their own legal costs to defend the claim, so it was an expensive failure to follow a fair process.

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

Alan Knowsley

Trainee minimum wage does not apply to intending trainees…

Industry trainees can be paid a lower minimum wage than adults if they are enrolled in a programme of study leading to a national certificate.

The Employment Court has ruled that employees not yet enrolled (even if intending to enrol) must be paid the adult wage until they are enrolled on the course.

This position continues under the new minimum wage provisions coming into operation on 1 May.  If you need assistance with applicable minimum pay rates give me a call on (04) 473 6850.

Alan Knowsley

Youth Wage Change

16-19 year olds in new jobs will be able to be paid a new Youth Wage Rate from 1 May 2013.

The new rate ($11/hr) is set at 80% of the adult minimum rate ($13.75/hr).

It will apply to:

(i)            16-17 year olds in the first six months of a new job.

(ii)           18-19 year olds who have been on a benefit for six or more months.

(iii)          16-19 year olds on a recognised industry training course.

If you need assistance with implementing this new Youth Wage or advice on how it might apply to you give me a call on (04) 4736 850.

Alan Knowsley