Cannabis using truck driver justifiably dismissed…

In a recent Employment Relations Authority decision the personal grievance for unjustified dismissal by a truck driver was rejected.  The employee had been taken on when the employer knew the employee was recovering from a cannabis addiction.

The employee requested time off to support a friend at Court, and this was granted, but the employee failed to tell his employer he was also appearing for cannabis cultivation.  The employer read about his conviction in the paper.

During the disciplinary investigation, when asked why he had not told his employer that he was also going to Court on a charge, the employee replied that he had, “…done it before and got away with it.”

The dismissal was upheld because of the dangers involved in truck driving combined with cannabis use, and also because the employer had lost the necessary trust and confidence in the employee because of his dishonesty when seeking time off. 

The employee at the hearing denied saying that, “…he’d gotten away with it before,” but the employer had kept good notes of the meeting and these supported the employer’s memory of events. 

Keeping good notes is essential in disciplinary investigations to help prove what admissions were made, as well as showing that the employer considered what the employee said (even if they don’t believe the explanation).

If you need help with how to handle a disciplinary investigation give me a call on

(04) 473 6850.

 

Alan Knowsley

Employing whanau? Get the processes right…

It is compulsory to have a written employment agreement for all employees.  It is just as important to have the paperwork in place for whanau members as a recent example highlights.

The employer had a brother who was short of work so to offer whanau support he took him on to do odd jobs around the business.  As he was a whanau member the employer was lax with getting the paperwork done.  In due course the employer’s brother had an argument with the employer’s wife and there was a parting of the ways.

The two brothers had agreed that the relationship would be as an independent contractor.  After the bust up the brother claimed he was an employee and claimed for unpaid wages.

The Employment Relations Authority found that the brother was a contractor.  On appeal the Employment Court held that he was an employee and awarded compensation. Employers can also be hit with awards of compensation for any hurt and humiliation suffered (usually several thousand dollars) plus a penalty for not having an employment agreement.

So even if you are taking on a whanau member make sure you get the paperwork right and get agreements in writing and witnessed to minimise later arguments should there be a disagreement. 

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

 

Alan Knowsley

Employer failure to encourage new employer to take on redundant employee leads to $8,000 damages…

An employee made redundant took a personal grievance for unjustified dismissal.  His employer was winding up its business and transitioned 2,500 of its 2501 employees to a new employer.  It made no effort to transition the only other employee because it regarded him as a troublemaker for raising other grievances.

The Employment Relations Authority held that the employer had an obligation to encourage the new employer to take on all employees and that its failure to do so meant it was in breach of its employment agreement.  The ERA awarded $8,000 damages.

The employee had sought reinstatement but this could not be awarded because the employer no longer had any employees and did not conduct any business and the new employer had no obligation to take on the employee as it was never his employer (despite being a related company to his employer).

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

 

Alan Knowsley.

Family business dispute costs employer over $59,000…

The managing director of a family business took an unjustified dismissal claim against her employer (owned by various family members) after her dismissal on a range of serious misconduct matters.  These included consumption of alcohol at work, falsifying timesheets, banking funds into her own account, taking cash home, theft, and giving discounts to her domestic partner.

The employee was suspended and then dismissed following a meeting with the other directors and shareholders, and took a personal grievance for unjustified dismissal and unlawful suspension.

The Employment Relations Authority found that the suspension was done without a proper process as the employee had no opportunity to comment on the suspension before it was imposed.

The ERA also found that there was no evidence to support any of the allegations as misconduct, let alone serious misconduct justifying dismissal.

In addition the employer carried out the disciplinary process by stealth.  It did not advise the employee of the real purpose of the meeting, nor what the allegations were in advance (so she could not prepare).  It did not give her an opportunity to have a support person, and did not give her any of the documentation upon which it relied.

The employer also told the other employees (before it had reached a decision on the allegations) that the employee “had done very bad things” and would not be returning.

The ERA held this to be gross predetermination of the issues and a complete failure of any proper process, describing the employer’s actions as “cavalier”.

The ERA order compensation of $15,000, lost wages of $31,833, wage arrears of $6,500 and costs of $5,890 (totalling more than $59,000).

The employee may not see any of this money as the business is no longer trading and is said by her other family members to be insolvent.

If you need help getting your disciplinary investigations right give me a call on 04 473 6850.

 

Alan Knowsley

Offer of compensation ruled to be breach of good faith…

A recent Employments Relations Authority decision on a personal grievance for unjustified dismissal (following a redundancy) has had an unusual twist in that the employer’s offer to pay compensation has been held to be a breach of good faith.

The employer was going through a redundancy process and concluded that the employee’s position was redundant.  It offered to pay him his notice pay as compensation (which would make it tax free to the employee) if he accepted it in full and final settlement.

The employee refused and worked out his notice.  He then brought his claim alleging the redundancy was a sham.  This was rejected by the ERA, but it did conclude that because the employee had not raised a personal grievance at the time of the offer of compensation he was not entitled to compensation and the offer was in bad faith. 

The ERA declined to impose a penalty.  What the IRD’s attitude to this attempt to assist the employee to avoid tax will be remains to be seen.

Settlements that involve compensation payments (tax free) need to be carefully worded and carefully timed.  If you need help to get the process right give me a call on (04) 473 6850.

 

Alan Knowsley

Failure to advise of right to rest breaks leads to compensation…

An employee recently brought a personal grievance claim because she alleged she was unaware she was entitled to paid rest breaks.

The employer agreed that it had not specifically brought the right to breaks to the employee’s attention (they are not mentioned in the employment agreement) but claimed she must have known about them as other staff took their breaks. 

The ERA held that there is an onus on the employer to provide the breaks and an onus to ensure employees know they are entitled to them.

The ERA ordered compensation for the hurt and humiliation suffered from not being advised of the right to breaks.  In this case the employee (self-represented) did not seek a penalty to be imposed.  One would have been likely if it had been sought.

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

 

Alan Knowsley

Telling employee “It wasn't working out,” and he "had to go" costs employer $9k...

A recent Employment Relations Authority hearing into a personal grievance claim for unjustified dismissal has cost the employer over $9,000 in damages and costs.

The employee arrived at work one day to be told by the employer that “it wasn’t working out” and he “had to go”.  He asked about working out his notice period and was told to leave immediately.

The ERA confirmed that this total lack of a proper process meant the dismissal was unjustified.  The employer should have raised performance concerns with the employee and if standards were not reached, given graduated warnings before resorting to dismissal.  No previous issues of poor performance had been brought to the employee’s attention.

The employee was awarded $3,840 lost wages (out of work for 4 weeks), $4,000 compensation, and $1,200 legal costs. 

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

 

Alan Knowsley

Employer fined for failure to provide a written employment agreement…

In a recent Employment Relations Authority case upholding a personal grievance the ERA has penalised the employer $1,000 and ordered that sum to be paid to the employee.

Every employment agreement must be in writing and the employer must give a signed copy to the employee and keep a signed copy on file.  In addition a copy of every draft given to the employee must be kept on file.

A failure to do so can be expensive…

If you need help putting employment agreements into place we can provide templates that cover full time, casual, part-time, fixed term and trial employees.  Give me a call on (04) 473 6850.

 

Alan Knowsley

Employer fined for seeking premium to provide a job…

 

Parents of an employee who paid money to an employer to provide a job for their daughter have won their case for the return of the $7,000 paid and the employer has been fined an extra $3,500 for breaching the law.  It is not lawful in New Zealand to demand a premium for provision of a job.

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

 

Alan Knowsley

Social media catches out dishonest employee…

In a recent Employment Relations Authority decision an employee who brought a personal grievance for unjustified dismissal has failed to recover any compensation despite the dismissal being found to be unlawful.

The employee was moonlighting from home and competing with the employer.  The employer also suspected stock was being stolen.  The employee had accidentally left her Facebook page open on her work computer which showed she was treating her employer’s clients at home in competition. 

On being confronted the employee resigned verbally and left the premises, but later sent in a sick certificate.  The Authority held that the verbal resignation, in the heat of the moment, should not have been accepted without confirming it later with the employee.

No proper disciplinary process was followed in relation to the moonlighting allegations so that could not justify the “dismissal”. 

However as the employee was acting dishonestly by competing with her employer the remedies were reduced from $5,000 compensation to zero.

The ERA also ordered the employee to pay damages for the lost business she had stolen.

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

 

Alan Knowsley