Employees must raise Personal Grievance with employer within 90 days…

An employee who lodged his personal grievance with the Employment Relations Authority on the 90^th day after his dismissal has had his claim rejected as out of time.

The ERA ruled that although the claim was filed on the 90^th day it was not received by the employer until the 95^th day and was out of time.

The employee must raise the personal grievance with their employer within 90 days (not file their claim at the ERA within 90 days).

If the employee had taken a copy to the employer on the day he lodged the claim he would have been in time. 

No extension for special circumstances was granted and the claim failed.

If you need help raising a personal grievance or responding to one give me a call on (04) 473 6850.

 

Alan Knowsley

Unfair dismissal for buying discounted goods…

 

An employee dismissed for buying items that she had marked down has won her unjustified dismissal claim in the Employment Relations Authority and more than $16,000 in wages and compensation.  The employer alleged that buying goods that an employee had marked down was contrary to the workplace policies.

The ERA found the dismissal to be unjustified because the policies were unclear and had not been put in writing.  In addition the sale had been carried out by the employee’s supervisor, who knew the employee had marked down the items but said nothing at the time of the sale.  This was held to be approval of the transaction.

If you want to enforce policies and procedures you need to set them out clearly, and preferably in writing.  You must also make sure they are brought to the staff’s attention and enforced in a consistent way. 

If you need assistance getting policies into place, or enforcing them, give me a call on (04) 473 6850.

Alan Knowsley

Calculating pay for a day in lieu…

When paying an employee for a day in lieu it is important to pay at the correct rate.  Check the employment agreement to see if that sets out what the normal daily rate is.

If not look at what the worker would normally have worked if they had not been away on a day in lieu.  If that day would be x hours then the day in lieu should be paid at x hours.

A recent Employment Relations Authority decision has confirmed that the correct pay for a day in lieu is what the employee’s normal day would have been.

In this case the workers were on 12 hour shifts but were only paid for 8 hours on days in lieu for public holidays.

It pays to get your pay calculations right as it is estimated that the back pay owed could amount to $7million for this employer.

Remember in addition to pay time and half for hours actually worked on public holidays.  If you need help please call me on (04) 473 6850.

 

Alan Knowsley

Failure to cancel redundancy costs employer over $18K...

A redundant worker took a personal grievance against her employer and has been awarded over $18,000 in lost wages and compensation for unjustified dismissal.

The employer was selling its business and the new employer did not require the employee so she was made redundant.  She was only given two weeks notice when her contract provided for four weeks.

After she had stopped work (but before the correct notice period of four weeks) the sale fell through.  The Employment Relations Authority held that she should have been offered her job back as the correct notice period had not expired and her position was no longer redundant.

The employee was out of work for 29 weeks and an order was made for the employer to pay her six months lost income ($13,727) plus $5,000 for hurt and humiliation.

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

Alan Knowsley

Delay in disciplinary proceedings too long says ERA…

In a recent Employment Relations Authority decision a final warning for serious misconduct has been overturned due to delay.

The employee took a personal grievance after being found guilty of serious misconduct.  The employer imposed a final warning and ordered the employee to undergo anger management training.  The incident arose when the employee was shaken awake by a colleague during a scheduled rest break.  The employee was upset and shook the colleague by the arm asking how it felt to be woken like that.

The disciplinary process instigated by the employer took 10 months to conclude that the employee had committed serious misconduct.

The ERA threw out the final warning and the imposed anger management course because by that time the incidents were historical.  The employee had been working in the interim without incident. No damages were awarded to the employee because of her over-reaction and handling of her colleague.

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

Alan Knowsley

$37,500 fine and reparation following work accident...

An employer was recently prosecuted after a contractor on site was run over by a forklift resulting in the loss of two toes and fractures of his foot.

The employer had recognised the danger to pedestrians and, after getting advice from a Health & Safety Consultant, put in place rules around forklifts only travelling at walking pace and the driver and pedestrians having to make eye contact.

Despite these precautions, and eye contact being made, the pedestrian thought the forklift had stopped – so stepped in front of it and was run into.

The Court ordered $15,000 reparation to the victim plus a fine of $22,500.  This fine was reduced from the staring point of $40,000 based on the Company’s prior excellent record (no accidents in 20 years of operation), its guilty plea, and immediate remedial action to prevent future accidents.

The Court said that despite the safety plan in place it failed to prevent the accident because of the inattentive pedestrian.  The means to avoid such an accident was an exclusion zone marked by cones which would have been cheap and easy to implement.

This case is a timely reminder of the need to take ALL practicable steps to avoid accidents.

If you need help with your safety action plans give me a call on (04) 473 6850.

Alan Knowsley

Fixed term agreement rejected as real reason not given…

A recent Employment Relations Authority decision has upheld a personal grievance for unjustified dismissal.  The employee was the General Manager, and following a merger of two companies was offered a fixed term agreement on the basis that he was not the right fit to take the combined company forward.  He was paid a $20,000 incentive payment to enter into the fixed term agreement.

The ERA held that the reason given to the employee was not the genuine reason for the fixed term, which meant the employee had not had a real opportunity to bargain and consider whether to sign up for the fixed term.

The employee was awarded four months salary plus $8,000 compensation and legal costs.

What makes this case very interesting is that the real reason found for the fixed term was that the employer was going to make the position redundant (which it subsequently did do). 

The employer had tried to be kind to the General Manager by not making him redundant (no redundancy payment was payable), keeping him on for six months instead of one month’s notice, and paying him a significant incentive payment.

This came back to bite the employer.

It would have been far better in the particular circumstances for the employer to have gone down the redundancy route without a fixed term agreement. If it wanted to be generous it could still have done so, and without getting “hit” twice.

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

Alan Knowsley

Once again poor process costs employer 3 months wages...

An employee has been awarded three months lost wages after he was dismissed for serious misconduct.  The employee had received several prior warnings for failure to attend work on time and was dismissed after a further episode.

Unfortunately for the employer, none of the prior warnings were valid as none were imposed after a proper disciplinary process.  On no occasion had the employer advised the employee of the allegations, or given him an opportunity to respond, and the warnings were imposed by the employer based on predetermined decisions.

As the warnings were all procedurally incorrect the dismissal also fell over, which was a costly lesson for the employer and one that could easily have been avoided if a proper process was followed.

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

Alan Knowsley

Wrongful dismissal costs employer $20,000…

In a recent Employment Relations Authority case regarding a personal grievance for unjustified dismissal an employer has been ordered to pay over $12,000 lost wages (3 months), plus $8,000 compensation, after it dismissed an employee who it knew was only asserting what he believed to be his contractual rights.

The employer had originally paid overtime at time and a half but sought to change that to ordinary pay rates.  The Authority held that the time and a half pay was now a term of employment and could not be unilaterally changed.  Refusing to sign a new agreement with the altered rate was not serious misconduct.  Nor was the employee’s action in claiming travel time between work locations.  This was known to the company and should have been resolved by mediation not a disciplinary process.

The ERA held that the employee had not contributed to his dismissal because his position was a fair and reasonable one to take on the interpretation of his agreement.

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

Alan Knowsley

Dismissal factually justified but procedurally botched…

An employee has won damages after taking a personal grievance claim for unjustified dismissal as a result of being sacked as medically unfit.

The Employment Relations Authority found that the employee was unfit to work and the employer made a correct decision to terminate, but got the process wrong. 

The employer kept the job open for two months despite the real and serious pressures this put the business under.  It was not reasonable for the employer to engage a temporary replacement due to the nature of the employee’s tasks and the amount of training required.

There was no end point in sight when the employee would be fit to return to his normal duties.

The procedural failures of the employer were:

(i)            Sending letters to an incorrect address so the employee had no opportunity to respond.

(ii)           Failing to advise the employee of his right to a support person.

(iii)          Failing to follow up when the employee did not provide medical reports on his condition.

(iv)         Failing to engage with the ACC Occupational Therapist who was trying to implement a return to work program.

(v)          Failing to engage with the employee about any light duties available.

(vi)         Terminating the employment by phone when the employee had requested a meeting to discuss matters.

If a proper process had been followed termination could have occurred.  Lost wages were not ordered, but the employee was entitled to compensation for the poor process.

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

Alan Knowsley

Unjustified demotion leads to constructive dismissal…

An employee has won three months lost wages plus $5,000 compensation and costs after resigning following a demotion.

The employee (store manager) was demoted without warning or fair process, and in front of other staff and customers.  She resigned and filed a personal grievance claim for constructive dismissal.

The employer should have gone through a proper performance review or disciplinary process before considering any demotion, and it should not have acted in front of staff and customers.

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

Alan Knowsley