Misappropriating Employee ordered to pay over $700,000…

A manager took a personal grievance for unjustified dismissal, but has instead ended up facing repaying $210,000 she wrongfully paid to herself for unapproved days in lieu, plus $436,000 for misappropriated money taken via false supplier accounts.  She has also had to pay $70,000 in costs and damages.

She had worked for the employer for 13 years before her misappropriations were discovered.  The employer got the disciplinary process wrong, but no damages were awarded.

If you need help dealing with suspected employee theft give me a call on (04) 473 6850.

 

Alan Knowsley.

$15,000 damages for botched redundancy…

The Employment court has upheld a personal grievance claim for unjustified dismissal after a redundancy process.

The employer had used psychometric testing as part of the process of choosing which staff to make redundant.  The employer had used an outside agency to test the relevant staff, but was not permitted to know the questions asked and answers given because this was the intellectual property of the testing company. 

The employer could not provide that information to staff affected on request and was therefore held to have been not acting in good faith.  The Court warned about relying on such systems in choosing who to make redundant.

The employer also did not comply with its own employment agreement provisions on how to decide on redundancies, and took into account irrelevant factors.  The Court ordered reinstatement and $15,000 damages.

If you need assistance with the redundancy process give me a call on (04) 473 6850.

 

Alan Knowsley.

 

Who pays if employees don’t make it to work due to a natural disaster?

The recent earthquakes have again raised the debate over who has to pay if an employee does not make it to work. Does the employer have to continue to pay despite the employee not turning up or does the employee lose that day’s pay or have to use annual leave or leave in advance (if approved)?

Does it matter that the “Authorities” tell people not to come into work for the day? What if the building has not yet been assessed and declared safe?

The first place to check is the employment agreement to see if this covers the situation. If so then follow what it says (unless you decide to be more generous).

If the employment agreement does not cover it then check your policies and procedures. If they apply then follow those (remember that you may want to be more generous in some circumstances).

If there is nothing agreed then an employer is not bound to pay employees who do not make it to work following a natural disaster. However, before you make the decision to cut wages, consider what effect such a decision may have on staff morale. Is it worth the upset and disruption from having disgruntled employees? This may be especially so if civil authorities have told people to keep away from an area or if the employees could not access the building due to a cordon.

Each employer should consider their own circumstances and the long term effects of any decision before deciding what to do.

Alan Knowsley

Contractor? Employee? Fixed Term? Permanent? Dismissed? How a teacher went from one to the other in 5 weeks of employment…

The Employment Relations Authority has upheld a personal grievance claim for unjustified dismissal of a teacher in very shambolic circumstances.

The language school employer needed cover for five weeks due to an unexpected overlap of students.  It approached the teacher who agreed to be an independent contractor for five weeks to cover the overlap.  A poorly drafted contractor agreement was signed.

The teacher commenced work and then claimed that he was an employee rather than an independent contractor.  After negotiations the school agreed to make him an employee on a fixed term agreement to finish at the end of the five weeks.  The teacher agreed.  The employer however never got the employee to actually sign the employment agreement.

At the end of the five weeks the employee then claimed he was a permanent employee and raised a personal grievance with the ERA.

The ERA held that the employee knew he was only on a fixed term but that the law requires the reason to be stated in the employment agreement (which was never signed). 

As a result the employee was held to be a permanent employee and unjustifiably dismissed at the end of five weeks.

The ERA awarded the employee three weeks lost wages, but refused to award any compensation or costs.

If you need assistance getting your contractor agreements or employment agreements into place give me a call on (04) 473 6850.

 

Alan Knowsley

$55,000 penalties for worker injured in a fall…

The District Court has imposed a fine of $20,000 and ordered reparation of $35,000 for breaches of Health & Safety requirements after a worker fell and suffered a serious back injury.

The Court found that the employer could easily have erected scaffolding that would have prevented the accident.  The reparation would have been $110,000 and the fine $75,000 but for the inability of the employer to pay those amounts.

You need to identify all hazards and take all practicable steps to eliminate, isolate or minimize those hazards.  A failure to do so could be fatal to your employees and to your business.

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

 

Alan Knowsley

Constructive dismissal claim leads to $63,000 award…

A trucking company has been ordered to pay a former employee $38,000 in lost wages and $25,000 compensation for hurt and humiliation after a successful personal grievance claim for constructive dismissal.

The employer’s actions were so bad that the hurt and humiliation award was much higher than normal to reflect the numerous failings.

The employer:

        (i)           Warned the employee for damaging a vehicle when she was not present during the incident and not responsible for the damage.

       (ii)          Threatened disciplinary action against her when she raised complaints of sexual harassment.

       (iii)          Unilaterally altered her terms of employment.

      (iv)          Sexually harassed the employee.

       (v)          Discriminated against her based on her gender.

      (vi)          Failed to address her complaints of harassment, and

      (vii)         Failed to assist her to obtain medical help after an injury.

These failings meant that the employer acted so badly towards her that she had no choice but to resign, and was therefore constructively dismissed.

The really unusual and reprehensible features here were the refusal to allow access to first aid, refusal to allow an ambulance to be called, and refusal to assist with transportation to hospital.  The employee was eventually transported by a family member and admitted to hospital for several days.  It is hard to imagine a more callous approach by an employer in New Zealand.

 

Alan Knowsley

Dismissal for insubordination held to be unjustified…

An employee has won his unjustified dismissal claim after taking a personal grievance to the Employment Relations Authority.  The ERA found that the employee should not have told his boss to, “Lose the attitude and calm down,” but that those words did not amount to serious misconduct justifying immediate dismissal.

The employer failed to advise the employee that it was conducting a disciplinary meeting, failed to advise him of the alleged misconduct, did not tell him he could have a support person, did not give any opportunity to respond, and did not tell him he could be dismissed.

The ERA awarded lost wages and compensation for the unjustified dismissal.

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

 

Alan Knowsley

Unilateral removal of employee’s rights to work vehicle use…

An employee has won his disadvantage claim after his employer removed his right to use a work vehicle to and from work.  The employment agreement provided that the motor vehicle use could be changed following consultation.  The employer failed to consult before advising the employee he would no longer be able to use the vehicle to and from work.  Damages are still to be quantified.

The employer should have followed the process of consultation set out in the employment agreement.  Instead it advised the employee that a proposed vehicle fleet policy would not apply to him and he did not need to attend briefings on the new policy. 

It then applied the policy to him without notice, and claimed that the earlier briefings (which he was told he did not need to attend) were his opportunity for consultation.  Those arguments got a robust rejection from the Employment Relations Authority.

If you need help implementing changes to employee terms and conditions give me a call on (04) 473 6850.

 

Alan Knowsley

Arbitrary reduction in hours results in constructive dismissal…

An employee who had her hours cut without agreement has won her personal grievance claim for unjustified dismissal.  The employee left her employment after three incidents of reduced hours.

The Employment Relations Authority has upheld her claim and awarded $4,200 lost wages plus $1,500 compensation for hurt and humiliation.

Unless the employee agrees, you cannot reduce their hours.  If the employee does not agree, then, if there is insufficient work, you can begin a redundancy process.  An employer cannot use a redundancy process to deal with poor performance or discipline issues.

If you need help with employees who are not performing up to standard or in a restructuring give me a call on (04) 473 6850.

 

Alan Knowsley

Flawed redundancy process costs employer $85,000…

The Employment Court has upheld an employee’s personal grievance claim for unjustified dismissal following a redundancy process.

The employer incorrectly calculated its cash flow predictions and concluded that several staff had to be made redundant.  It reached final conclusions without giving the affected staff any opportunity for input. If consultation had taken place then the errors may have been discovered and the employee’s job saved. Consultation is not to be taken as lip service to a foregone conclusion.

The Court awarded 12 month’s lost wages of $65,000, plus compensation for hurt and humiliation of $20,000. 

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

 

Alan Knowsley

Serious Harm and Accident Notification…

All employers, self-employed, and principals must notify as soon as possible work place accidents and serious harm incidents. This can be done verbally.

You must also notify the Department of Labour in writing (now part of the Ministry of Business, Innovation and Employment) within 7 days.  The notification must supply the following information:

1.      Your business name.

2.      Your postal address.

3.      Your telephone number.

4.      Whether you are the employer, self-employed or principal.

5.      Location of place of work.

6.      Name of injured person.

7.      Address of injured person.

8.      Occupation of injured person.

9.      Whether the injured person is an employee, contractor, yourself or some other person.

10.   If an employee how long they have been employed.

11.   Whether they have been treated, first aid, doctor, hospital.

12.   Date and time of accident.

13.   Hours worked before accident.

14.   How the accident occurred:

-       Fall, trip or slip

-       Sound or pressure

-       Body stressing

-       Biological

-       Mental stress

-       Hitting object with body

-       Being hit by object

-       Heat, radiation or energy

-       Chemicals

15.   Agency of accident/serious harm:

-       Machinery (fixed)

-       Machinery (mobile) or transport

-       Power tools

-       Chemicals

-       Materials

-       Environmental e.g. dust or gas

-       Animal, human or biological

-       Bacteria or virus

16.   Body Part:

-       Head

-       Neck

-       Trunk

-       Upper limb

-       Lower limb

-       Multiple locations

-       Systemic internal organs

17.   Nature of Injury (mark all applicable):

-       Fracture of spine

-       Other facture

-       Dislocation

-       Sprain or strain

-       Head injury

-       Internal trunk injury

-       Amputation (including eye)

-       Open wound

-       Superficial injury

-       Bruising or crushing

-       Foreign body

-       Burns

-       Nerves or spinal cord

-       Puncture wound

-       Poisoning or toxic

-       Multiple injuries

-       Damage to artificial aid

-       Disease, nervous system

-       Disease, musculoskeletal system

-       Disease, skin

-       Disease, digestive system

-       Disease, infectious or parasitic

-       Disease, respiratory system

-       Disease, circulatory system

-       Tumour (malignant or benign)

-       Mental disorder

-       Fatal

18.   Where and how did the accident/serious harm happen?

19.   Employer to specify if investigation has been carried out and whether a significant hazard was involved.

20.   The notification must be signed and dated with the name and job position of the person signing. 

A form can be downloaded from the Ministry of Business Innovation & Employment website. 

If you need to report a Hazardous Substance Emergency call the Fire Service on 111 and also the MBIE contact centre on 0800 209 020.

You must not disturb an accident scene except to protect life or property (in some circumstances).  For scene clearance by a health & safety inspector call 0800 209 020.

In a recent case an employer was fined $60,000 for failing re report a workplace accident and in another case fines for non-reporting of $50,000 to $100,000 were sought as this prevented the accidents being investigated.

You need to be aware of not only your obligations to prevent accidents/harm but also to report any that do occur.

 

Alan Knowsley