Employee brought all the way from England only to be dismissed by employer…

An employee who worked as a Project Manager has had his personal grievance claim for unjustified dismissal upheld by the Employment Relations Authority.

The employer was unhappy with the employee’s performance after recruiting him from England. 

The ERA held that the 90-day trial provision was not valid as the employee had already been employed before he signed his individual employment agreement.

It found that the employer failed to act as a fair and reasonable employer could in the circumstances by failing to communicate to the employee any concerns about his performance, and for failing to give the employee any opportunity to explain his conduct or chance to improve his performance.

The ERA awarded over $32,000 for lost wages and reimbursement for work visa costs, plus $7,000 compensation for humiliation, loss of dignity and injury to feelings.

Alan Knowsley

Dirty cars leave a bad taste in employer’s mouth…

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

The employee worked as a car groomer and was dismissed after he refused to follow instructions and failed to clean a number of cars properly.

The ERA held that a fair and reasonable employer in the circumstances could not have dismissed the employee for his conduct as his refusal to follow instructions was not repetitive and was a one off event.  The ERA also found that the employer failed to raise any concerns with the employee over his conduct, and did not provide him with the chance to explain his behaviour.

The ERA awarded over $780 for lost wages and leave entitlements plus $500 compensation, including a reduction of 50 per cent for contributory behaviour.

Alan Knowsley

Employee calls cancer patient crazy …

An employee’s personal grievance claim for unjustified disadvantage has been rejected by the Employment Relations Authority.

The employee worked as a Customer Services Consultant for a company operating public ferry services. The employee was given a final written warning after a customer who suffers from cancer made a formal complaint about her behaviour.

The ERA held that the employer acted as a fair and reasonable employer could have in the circumstances by making the decision to issue the employee with a final written warning, which has made the employee vulnerable to dismissal.

The ERA said that the employer’s decision was reasonable as the employee had followed the customer from the ferry terminal without authorisation, and had harassed her by making loud offensive comments.

The ERA found that this behaviour constituted serious misconduct which justified the employer giving her a final written warning.

Alan Knowsley

Employer forced to pay $2,330 to employee…

An employee who worked for a roofing company and resigned has had her personal grievance claim for money owed by the employer upheld by the Employment Relations Authority.

The ERA held that the employee was not an independent contractor. The employee did daily office work for the employer and submitted timesheets, not invoices, for the hours worked on a regular basis.  The employee was also paid wages regularly from which PAYE was deducted.

The ERA awarded over $2,330 for notice, annual leave and one day statutory holiday owing to her by the employer.

Alan Knowsley

Employee awarded $8,800 after allegedly chatting up customers…

An employee who worked for a chain store has had his personal grievance claim for unjustified dismissal upheld by the Employment Relations Authority.

The employee had a series of complaints made against him from customers, and other staff members, regarding alleged inappropriate, sexualised, behaviour. The employee was also accused of using the store’s outdoor garden area as a place to pick up women.

The ERA held that the process the employer used to dismiss the employee was procedurally wrong. The employer failed to act as a fair and reasonable employer could have in the circumstances, as the employer did not advise the employee of any potential consequences arising from the complaints which may have affected his employment, nor did they properly investigate the complaints.

The ERA awarded over $5,500 for lost wages plus $3,300 compensation for humiliation, loss of dignity, and injury to feelings.

Alan Knowsley

Employee awarded $14,900 after being sacked for no driver’s licence…

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

The employee worked for a drilling firm, and was told to get her restricted driver’s licence as soon as possible. No time frame was given.

The ERA held that the employer did not act as a fair and reasonable employer could have in the circumstances. It failed to inform the employee of a time when she needed to get her licence by, and failed to fully investigate why the employee did not have her licence.

The ERA awarded over $7,900 in lost wages plus $7,000 compensation for humiliation and distress.

Alan Knowsley

Facebook “likes” and commenting on a post leads to dismissal…

An employee who worked as a manager at a Childcare Centre has had her personal grievance claim for unjustified dismissal rejected by the Employment Relations Authority.

The employer dismissed the employee for “liking” two separate Facebook posts on her employment advocate’s business Facebook page that included comments that were highly critical of the employer, and for adding a comment to the first post.

In doing so, the posts and her comment were published to all of the employee’s ‘Facebook friends’ that included other Centre staff, and parents with children at the Centre.

The ERA held that the employer’s dismissal of the employee for serious misconduct was justified, and the dismissal was an appropriate response of a fair and reasonable employer. Unlike so many other employers the employer in this case also got the process right to get to the decision to dismiss.

Alan Knowsley

Employee dismissed after not following instructions…

An employee who worked at The Warehouse has had her personal grievance claim for unjustified dismissal rejected by the Employment Relations Authority.

The employee was dismissed after she gave away multiple car phone charges to customers who had purchased phones valued at less than $50. The employee continued to breach the store’s policies after she was told not to by a senior team manager.

The ERA held that the employer was entitled to find that the employee had engaged in serious misconduct after ignoring her manager’s instructions as the employer had conducted a thorough investigation into the matter. The ERA also noted that the employee gave inconsistent evidence which undermined her argument that she had given away the phone chargers prior to her warning.

The ERA found that the employer had conducted themselves as a fair and reasonable employer could have in the circumstances by holding a disciplinary process which gave the chance for the employer to respond to their concerns about her behaviour.

Alan Knowsley

40 year friendship doesn’t mean you can avoid acrimonious disputes…

The plaintiff worked as a general manager for a construction company owned by his friend of more than 40 years. The Employment Relations Authority held that he was an employee not a contractor and the Employment Court has upheld that finding. He can therefore bring his claims of unjustified dismissal to the ERA for a hearing.

The Court found that hostility between the friends has resulted in a complaint to the Police, and has driven their involvement in this and other litigation before the Disputes Tribunal over an item of modest value.

The Court has directed that the friends go to mediation to resolve the dispute, including the matter that was before the Disputes Tribunal. If it settles at mediation we will never know the outcome, but given the hostility between them it may be back before the Courts for a ruling in due course. Watch this space.

Alan Knowsley

Dismissal justified during trial period…

An employee who worked as a Supervisor and was dismissed during his trial period has had his personal grievance claim for unjustified dismissal rejected by the Employment Relations Authority.

The ERA said that the trial period within the employee’s individual employment agreement was effective as the employee had not previously been employed by the company, the provision was in writing, the trial period did not exceed 90 days, and the employee was given notice and dismissed during the trial period.

The ERA held that the dismissal does not deprive the employee of his ability to bring a personal grievance claim for unjustified disadvantage or for a breach of good faith.

The ERA directed the parties to mediation on those issues.

 

Alan Knowsley

Dismissal justified within the Department of Corrections…

An employee who was made redundant as a Chief Auditor for the Department of Corrections has had his personal grievance claim for reinstatement, lost wages, and compensation rejected by the Employment Relations Authority.

The ERA said that restructuring within the Department was genuine, and the decision to disestablish the employee’s position was unrelated to his performance or behaviour.

The ERA held that the employee was given the opportunity to provide feedback on the restructuring and reassignment, and that the feedback was given consideration before the decision was made and finalised. The ERA found that the Department had acted in good faith by including a preliminary result and by looking into employment protection.

Alan Knowsley

Employee awarded $9,900 after being made redundant…

An employee who worked as an accounts manager and was made redundant has had her personal grievance claim for unjustified dismissal upheld by the Employment Relations Authority.

The ERA said that the employer should have discussed, and put in writing, the position of the company and advised the employee that he was considering disestablishing her role.

The ERA also noted that the employer should have invited the employee to attend a meeting at which she could have had a support person present, and should have provided the employee with information, and an opportunity to make suggestions to improve the financial position of the company so as to avoid her dismissal. The employer should then have given genuine consideration to those suggestions before making a decision.

The ERA held that although the employer’s decision to disestablish the employee’s role was justified, the process they followed was flawed.

Lost wages of just over $2,900 plus compensation of $7,000 were awarded.

Alan Knowsley

Wife’s PG results in $93,000 award against her husband…

A falling out in the marriage had its sequel in the Employment Relations Authority when the wife’s claim for unpaid wages and holiday pay was upheld by the ERA.

The husband returned from overseas and accused his wife of embezzling money from the business which he owned and she was employed by.  The wife excluded the husband from the matrimonial home and he retaliated by cutting off her pay (as well as the power and phone utilities).

The husband then began harassing his wife at work and issued a trespass notice to keep her away from the workplace.

The wife made a claim for her unpaid wages, holiday pay and compensation and the ERA held that her dismissal was unjustified as no proper process was followed and no grounds for dismissal existed.  The ERA awarded $66,600 for wage arrears, $4,800 holiday pay, $11,700 lost wages and $10,000 compensation.

Alan Knowsley.

Remember to file your personal grievance claim within 90 days…

An employee who worked as a supervisor has had his personal grievance claim for unjustified dismissal rejected by the Employment Relations Authority.

The employee resigned after the employer sent him a letter regarding issues surrounding his work performance.

The ERA found that the employee failed to raise an unjustified dismissal grievance within 90 days of his employment ending and did not properly inform the employer of what the alleged grievance was about so that they could have an opportunity to resolve it.

The ERA refused to give the employee leave to raise a grievance out of time as the employee’s only explanation for why leave should be granted was that he was a ‘lay person’. The employee also failed to supply evidence in support of granting leave and failed to explain why there was a 17 month delay in making a claim. The ERA therefore held that the delay in raising the grievance was not due to exceptional circumstances and that it would not be just to grant leave.

Alan Knowsley

Independent contractor unsuccessful at ERA…

A contractor who worked for a trust has had his personal grievance claim for unjustified dismissal rejected by the Employment Relations Authority.

The ERA held that they had no jurisdiction to consider the contractor’s claim as he was not employed by the director of the company. 

The ERA found that the director of the company told the contractor that she did not want him to be an employee and he agreed to undertake the work on that basis. The contractor also issued invoices and claimed GST from them, made personal income from two properties which he was responsible for, and was aware that the director was not paying tax on his behalf.

Alan Knowsley

Employee dismissed following allegations of dishonesty and for competing with his employer…

An employee who worked as a sales executive has made a personal grievance claim for unjustified disadvantage and unjustified dismissal. The employee also seeks wage arrears.

The employee was dismissed after his employer accused him of competing against him at work, and for breaching company policy by dishonestly gifting products to his friends. The employer also noted that the employee had failed to turn up to work and was using a company vehicle for personal errands.

The Employment Relations Authority held that the employee’s unjustified disadvantage claim could not proceed as he did not raise the personal grievance regarding sexual and racial harassment with his employer within the 90 day time period.

The employee’s claim for unjustified dismissal will be dealt with at a later date.

The ERA upheld the employee’s claim for wage arrears. The ERA found that the employer accepted that the employee had not been paid wages for one month during his employment.

The ERA awarded $3,300 for wages owed, $1,800 for commission and $5,100 for other payments owed.

Alan Knowsley

Employee fired over hot chips…

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

The employee was a part-time bar manager and was dismissed by the employer after trying to serve hot chips to bar patrons late at night. 

The employer was not prepared to feed people who had been drinking at competing bars. The employer was drinking during the incident, and not on duty, but was interfering in the running of the bar anyway.  

The ERA said the employer wanted to get rid of the employee after the incident by removing the employee from shifts which they consistently worked. It held that even if the employee had originally been employed on a causal basis, the nature of the employment had changed to a permanent employee.

The ERA found that by reducing the employee’s hours, and thereby affecting their earnings, the employer had effectively forced the employee’s resignation.

The ERA awarded just over $5,300 in lost wages and $3,000 in compensation.

Alan Knowsley

Successful employee not awarded costs as she represented herself…

The Employment Relations Authority upheld a personal grievance claim for unjustified dismissal of a lawyer, but declined to award her costs for representing herself.

The employee sought costs for her time spent representing herself at the investigation meeting. The ERA said the employee was obliged to use her own time to prepare for, travel to, and attend, the investigation meeting.

The ERA held that in representing herself the employee was not entitled to costs of representation.

The ERA awarded just over $200 for filing fees, photocopying, stationary, and courier charges.

Significant lost wages and damages had previously been awarded.

 

Alan Knowsley

Even when firing family you have to follow the rules…

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

The employee worked as a labourer and driver for his father in a small earth-moving and transport company. The father dismissed the son over an allegation that the son had been gossiping about the father’s business to clients. The dismissal occurred after a heated meeting.

The ERA said that the disagreement between the son and the father directly resulted in the termination of the employee’s contract with the company. 

The ERA held that there was no evidence that the employer investigated the allegations, and the employee had been provided with no timely explanation of the reason for the meeting in order that he could prepare a response to it. Nor had the employee been advised of his right to have a support person present.

The employee’s father was also found not to have considered the employee’s explanations for the allegations.

The ERA awarded $8,600 for lost wages and $6,000 compensation for hurt and humiliation.

 Even if you are operating a family business you still need to follow the right procedures.

Alan Knowsley

Trainee driver awarded $8,600 after unjustified dismissal…

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

The employee worked as a trainee driver and was dismissed by the employer for speeding, and for failing to carry his log book and to pick up a scheduled passenger. The employer had also received complaints from two customers.

The ERA said that the employer should be upfront about possible consequences when considering a decision that may affect a worker’s employment. A fair and reasonable employer should also have conducted an investigation into the complaints when there was no great additional effort or delay. 

The ERA also noted that the employee should not have been dismissed before the results came back as to whether the employee was in fact speeding.

It held that the employer did not consider any alternatives to dismissal, or provide the employee with an opportunity to comment, or make available any information that might have affected the decision.

The ERA awarded just over $5,200 for lost wages, plus $3,400 compensation for humiliation, loss of dignity and injury to feelings.

Alan Knowsley

Sexual harassment and unjustified dismissal costs employer $20,000…

The Employment Relations Authority has upheld a personal grievance claim for sexual harassment and unjustified dismissal.  The employee was subjected to numerous attempts to get her to enter into an intimate relationship with the employer, which she rebuffed and told the employer to stop.

The employer then made her redundant with no consultation.  The first she knew was when she was told her position was no longer needed.  The ERA found this to be procedurally unjustified and also not justified by the financial position of the business.  In addition her role was filled by hiring another employee so the redundancy was obviously not genuine.

The ERA awarded almost $8,000 lost wages plus $12,000 compensation for the hurt and humiliation suffered from both the redundancy and the sexual harassment.

 

Alan Knowsley

Council worker awarded $37,000 after unjustified dismissal…

The Employment Relations Authority has upheld a personal grievance for unjustified dismissal after a personal assistant to a mayor was sacked for signing the nomination form for another mayoral candidate.

The Council’s protocol on elections stated that staff could not align themselves with or support candidates.  The employee had not read the protocol and signed the nomination form on the spur of the moment. 

The ERA found the protocol to be contradictory and not in line with those of other councils.  It also found that the CEO had applied the policy inconsistently by allowing another staff member to support a different candidate, but dismissing the employee in this case. 

The CEO had also approached the disciplinary investigation with a predetermined outcome.

The ERA awarded $31,000 for lost wages and $6,000 for hurt and humiliation.  Reinstatement was refused because of the breakdown in the relationship.

 

Alan Knowsley

Employee ordered to pay $4,000 penalty for secretly recording meetings with his manager…

The Employment Relations Authority has upheld an employer’s claim for a breach of its code of conduct.  The employee was involved in a dispute with the employer over his pay level and performance.  He secretly recorded meetings with managers and had access to confidential information from the manager’s laptop.  He also failed to return confidential information after he resigned.

The employer’s code of conduct prohibited the use of recording devices without management approval and also required all company property to be returned upon termination.

The employee brought a claim over the way his salary review was handled, and the ERA awarded him $500 for the failure of the employer to communicate with him that his performance was not up to the standard to justify a salary increase. 

This minor breach was held not to have caused the employee to resign, so his constructive dismissal claim failed.

The ERA however held that the employee had breached the code of conduct (which he had signed) by making the secret recordings and by retaining material after he resigned.  He also failed to provide the passwords necessary for the employer to access his laptop.

It ordered him to be penalised $4,000 and for the penalty to be paid to the employer.

It pays to have clear rules of conduct and to make sure those are given to employees and acknowledged.  If they are, then they can be enforced.

 

Alan Knowsley

Teacher incorrectly made redundant wins job back…

A teacher made redundant due to a falling roll has won her job back after her claim for unjustified dismissal was upheld by the Employment Relations Authority.

The teacher had been offered a different role previously and had turned it down due to workloads.  When redundancies had to be made the school assumed the teacher was not qualified for the role, did not consult with her about the redundancies, and made her position redundant.

The ERA held that the school had failed to consult, had wrongly assumed the teacher was not qualified for the role available, and had reappointed temporary and casual staff instead of the employee (who was a full time permanent employee).

The teacher was reinstated to her role and awarded $7,000 compensation.

 

Alan Knowsley

Forfeiture of wages clause held invalid…

An employee was injured at work and unable to resume work due to the injury.  He put in his notice and was unable to work out the notice period.  The employee withheld his holiday pay owing on the basis of a forfeiture clause for failure to work out the notice period.

The Employment Relations Authority upheld the employee’s personal grievance and ordered the withheld wages to be paid. 

The forfeiture clause here was being imposed as an illegal penalty and it was not a genuine estimate of extra costs from an employee failing to work out his notice.  Here the employee was injured and unable to work, and he had not deliberately left the employer in the lurch.

Before enforcing a forfeiture clause, an employer needs to have been put to extra expenses by the lack of notice e.g. hiring a replacement at a greater cost due to short notice. 

An employer cannot make a profit by holding back wages when extra expenses have not been incurred, and also cannot hold back wages where there is no fault by the employee.

 

Alan Knowsley

PG not valid as it failed to require employer to investigate…

An employee has had his personal grievance claim dismissed because his union failed to properly raise the PG.

The employee had been subject to a disciplinary investigation and given a final warning.  The union wrote raising a PG, but saying that the PG would be “parked” provided the employer did not seek to rely on the warning.

The ERA held that this did not comply with the requirements.  Part of a valid PG is to have an employer investigate the PG at the earliest possible opportunity.  Attempting to hold the PG over the employer and to activate it at some time in the future, if the employer did not do something, did not comply.

What the employee should have done was to raise the PG, have the employer investigate it and then if not satisfied with the outcome the employee had three years to lodge a claim to the ERA, and could “park” the PG up to then.

 

Alan Knowsley

Payment of allowance does not convert volunteer into employee…

The Employment Court has held that payment of a $1,500 allowance, partly an expense reimbursement and partly a small honorarium in appreciation of effort, did not turn a volunteer into an employee.

The plaintiff knew when he took on the role that it was a voluntary position and there was no contractual basis that made him an employee. 

An employee is defined as a person who does work for reward under a contract of service.

The payment in this case was not a “reward” and therefore the volunteer did not become an employee. In addition the “employer” could not have enforced any rights as employer under the agreement as the volunteer could leave at any time. 

 

Alan Knowsley

Fine for unpaid pay increases liability over 500%...

The Employment Court has fined an employer for failing to comply with an Employment Relations Authority order for payment of holiday pay ($1,568).  The employer indicated it would pay the holiday pay but failed to do so.  The Court imposed a fine of $8,000, payable to the Crown, plus costs.

A relatively small liability has grown in size by over 500% and the original debt still has to be paid. It pays to deal with these liabilities as ignoring them can get very costly.

 

Alan Knowsley

Worker who punched workmate wins claim…

The Employment Court has overturned the Employment Relations Authority and held that a worker dismissed for punching a colleague was unjustifiably dismissed.  The ERA had found the dismissal justified. 

The employee had been hit in the eye by a rubber band.  He punched the colleague in the head as a reaction to being hit in the eye.

No complaint was made by the victim of the punch, and no investigation was carried out by the employer until about 10 days later. 

The employer failed to properly investigate what had occurred e.g. was the rubber band flicked deliberately by the colleague, which would be relevant to provocation.

They also did not ascertain where the workers were standing when the incident occurred, which was relevant to the punch being a reflex action rather than deliberate retaliation. 

The employer also failed to properly record the various interviews that took place.  One major error was recording that the employee was not remorseful and that the punch was deliberate.

A transcript, made from an actual recording of the interview, did not contain these statements and instead showed that the punch was an instinctive reaction.

The Court held that the defects in the process followed were so serious that the employer’s decision to dismiss was not one that a reasonable employer could have made.

The Court declined to reinstate the employee, despite his 25 years service and clean record, due to the danger of repeat behaviour, but awarded three months lost wages and $10,000 compensation. 

The Court reduced those awards by 70% due to the actions of the employee contributing to the situation.

 

Alan Knowsley

Assaulting and swearing at employee not good disciplinary process…

Unsurprisingly the Employment Relations Authority has upheld an employee’s personal grievance for unjustified dismissal after he was assaulted and sworn at by his employer and told in abusive language to leave the work site.

The employee had been working on machinery and wearing earmuffs and goggles when the employer suddenly appeared next to him.  The employer proceeded to push and shove the employee and hit the employee’s hard hat off his head, yelling at him to get off the premises in very colourful language.

The employer claimed the employee was carrying out his work dangerously and that the actions were justified.  The ERA disagreed.  The employer should have shut down the machinery and spoken to the employee in a calm manner to deal with any safety concerns. 

The ERA awarded lost wages ($2,600) and compensation ($4,000) for the manner of the dismissal and hurt suffered.

 

Alan Knowsley

Casual employees still must be given employment agreement…

The Employment Relations Authority has confirmed that all casual employees must be given employment agreements.

The employer had not provided an agreement because it considered the employee to be a casual, but the ERA made it clear this was a misunderstanding of the legal position.

The employee’s claim for a personal grievance for unjustified dismissal and 12 months wages failed because the ERA held the employee was still a casual when the employer told him it would have no further work for him.

The employer was not obliged to offer work and the employee was not obliged to work. The employee had often made himself unavailable for work and had been paid his holiday pay each pay (as is allowed with casuals). 

His status therefore had not changed from casual to permanent and he was not unjustifiably dismissed because there was no obligation to offer him any work.

 

Alan Knowsley

Employee's jail term and convictions for theft of computer information overturned on appeal...

An employee who accessed his employer’s computer system and "stole" information was sentenced to 30 months jail in the New Plymouth District Court but the Court of Appeal has quashed his convictions.

The employee downloaded the files of secret company information just before he went to work for a competitor.  The "stolen" information was located by the Police on his home and new work computers.

The District Court Judge described the employee’s behaviour as highly calculating and opportunistic and a serious abuse of trust.  The 30 months imprisonment was imposed even though there was no evidence the employee had provided the information to his new employers (despite it being on his work computer).  The theft of it alone was enough to result in the prison sentence.

However, the Court of Appeal has decided that the computer information was not property and quashed the convictions. The employee had spent 5 weeks in jail pending the hearing of the appeal. The Court of Appeal considering whether to impose an alternative conviction of obtaining a benefit but decided not to in this case as the grounds for substituting new convictions were not made out.

Alan Knowsley

Employer fined almost $40,000 plus reparation...

An employee lost part of a finger when using a machine to shape tubing. The machine had been modified so longer pieces of tubing could be inserted.  This left some of the machine unguarded and the employee’s hand was caught in it.

The Court imposed a fine of $39,375 and ordered reparation of $15,000 be paid to the employee.

The employer need to ensure it had taken all practicable steps to prevent injury to its employees and had failed to do so.

Alan Knowsley

Botched return from maternity leave costs employer over $13,000…

The Employment Relations Authority has upheld a personal grievance claim for unjustified dismissal after the employee was alleged to have abandoned her employment.

The employee returned from maternity leave and went onto a two-day week at her request.  Later these hours were again varied by consent.

Problems began when the employee requested to return to full time hours but the employer would not agree.  The employer offered a new employment agreement but the employee refused to sign it and raised a personal grievance.

The ERA held that the employer should have continued to provide work for the agreed days pending any new agreement, instead of putting an ultimatum to the employee to sign the new agreement or there would be no work at all.

The employee was entitled to work the agreed hours and a change could not be imposed without her consent.  If the employer did not have sufficient work it should have gone through a restructuring process and consulted the employee.

The ERA awarded $11,000 wages plus $8,000 compensation, but reduced the awards by 30% because the employee failed to communicate with the employer appropriately when the employer tried to negotiate with her.

 

Alan Knowsley

Employer closes business but doesn’t tell employee…

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

The employee worked in a retail shop and was told the shop would be closed for repairs for three days so not to come to work those days.

When passing the shop she saw that the shop looked to be in the process of being abandoned but her employer told her no decisions on closure had been made.

The ERA said that the employer should have kept her informed of the position with closure and entered into consultation with her about possible redundancy, or hours at another store.

The ERA held the employee was entitled to resign due to the complete breach of trust by the employer over the closure of the shop.

Lost wages of $2,472 plus compensation of $3,000 were awarded.

 

Alan Knowsley

20 minute delay costs employer heaps…

The Employment Relations Authority has upheld an employee’s personal grievance claim for unjustified dismissal because the 90-day trial clause in his contract was ineffective.

The clause was correctly worded, the employee was given a copy of the contract and signed it before he started work. So what went wrong for the employer?

The ERA held that the clause failed to be effective for two reasons (either would have been sufficient to set aside the clause).

1.    The employer did not sign the agreement until 20 minutes after the employee commenced work so the employee was already employed when the contract was signed.

2.    The employee was only given the contract the evening before commencing work and therefore had no reasonable opportunity to take independent advice on the agreement before signing it the next morning.

As a result, the 90-day trial clause was out and so the employee’s dismissal failed to follow any proper procedures and was unjustified.

The employer was ordered to pay three months lost wages and $6,000 compensation.

An expensive outcome for the failure to give the employee the contract in enough time for him to get advice on it, and for not ensuring both the employee and employer signed before he commenced work. How much time is needed for getting advice can depend on the circumstances but at least a couple of work days would be the minimum. Allow more if the employee asks for further time. Their start date must be delayed if they have not yet signed.

Alan Knowsley

Employee dismissed while on ACC wins over $18,000 award…

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

The employee suffered a non-work accident and was off work for a considerable period.  When she was well enough for partial work she met with her employer and ACC Case Manager to discuss a graduated return to work.  She was told that day that she had been replaced and there was no work for her.

The ERA held that no process was followed to properly dismiss the employee and the dismissal was therefore unjustified.  The ERA awarded three months lost wages ($5,850), compensation ($7,500) and legal costs ($5,000).

It is important to discuss the inability to keep a position open with the employee and set deadlines for the return to work.

Obtaining medical reports on progress and likely prognosis are also important.

Whether or not an employer can keep the job open will depend on its resources and ability to cover for the person away with current staff or a temporary replacement.

An employer is not obliged to keep a role open, but a proper and fair process has to be followed.

Once again if the employer had followed a proper process it may have justified its inability to keep the employee’s job open, and avoided over $18,000 in awards against it.

 

Alan Knowsley

Employee awarded $8,274 after dismissal when another Employer fails to follow process…

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

The employee was dismissed for taking unauthorised breaks; failing to serve customers and deliberately damaging food items (allegedly to prevent their sale). 

The ERA held that none of these allegations were raised with the employee before she was dismissed and that no proper process was followed.  Lost wages of $774 and compensation of $7,500 were awarded.

Once again an employer has got the process all wrong and therefore lost the ability to justify the decision to dismiss.  Ignorance of the process and lack of funds to pay were not acceptable defences to the employee’s claims.

 

Alan Knowsley

Dismissal justified but back pay of over $29,000 ordered…

An employee who worked as a chef and was made redundant has had his personal grievance claim for unjustified dismissal rejected by the Employment Relations Authority.

The ERA said that it was reasonable for the employer to conclude that it had surplus staff, and the consultation process it adopted was fair and reasonable, as was the subsequent decision to dismiss the employee.

The ERA held that the employee was entitled to money in respect of unpaid annual leave and public holidays, but had to repay a loan that had been provided to the employee by the company.

The ERA awarded over $29,000 for unpaid annual leave and public holidays, and ordered the employee to repay the company $10,000 for the loan.

Alan Knowsley

Employee dismissed while on study leave wins compensation…

The Employment Relations Authority has upheld a personal grievance claim for unjustified dismissal after an employee was dismissed without any process being followed.

The employee had worked for the company for a number of years and it was agreed he would take a year off for study but be employed during that period for 10 hours per week.  He would also return full time at the end of the year.

The employer decided, after a few weeks, that it could do without his working 10 hours per week and dismissed him without any consultation.

The ERA held that the company should have gone through a redundancy consultation process and awarded 13 weeks lost wages ($2,600) and compensation ($4,000).

 

Alan Knowsley

Co-worker fined over worker’s death…

A work foreman who failed to check that the area in which he was working was clear has been fined $35,000, and ordered to pay reparation of $15,000, after one of his team was crushed to death.

The Court held that the foreman should have ensured he knew where everyone in the team was before commencing the operation that led to the accident.

The employer was also ordered to pay $135,000 in fines and reparation for its part in not taking all practicable steps to ensure its employee’s safety.

 

Alan Knowsley

Bank freezes employer’s accounts…

An employee has had her personal grievance for constructive dismissal upheld by the Employment Relations Authority.

Her employer got into financial difficulties and the bank froze its accounts and therefore wages could not be paid.

The employee refused to continue working when she was not being paid, and put in her resignation.  The ERA held that was a constructive dismissal as the employer’s failure to pay wages was a fundamental breach of its obligations.

The employee was awarded four weeks pay for her notice period, plus the shortfall between her salary and the lower pay in her new job for three months, as well as her unpaid salary up to her resignation, and $3,500 compensation.

 

Alan Knowsley

Employee who swore at employer wins modest damages…

A personal grievance for unjustified disadvantage and unjustified dismissal has been upheld by the Employment Relations Authority.  There was a dispute between the employer and employee which led to swearing and abusive language from the employee to the employer in front of other staff and customers.

The employee was suspended and disciplinary allegations raised in a letter.  The employee did not dispute the facts but challenged the process followed for the suspension and dismissal. 

The ERA held that the suspension was unjustified as there was no opportunity given to the employee to comment before the decision was reached.  The ERA said that if the suspension had been immediately after the swearing and abuse it would have been justified and not required an opportunity for input due to the safety concerns.  However, the decision was delayed until later when the employee had cooled down and so an opportunity for input should have been given.

The ERA held that the employer could have dismissed for the swearing and abuse but it failed to properly investigate the employee’s claims relating to the process and therefore was unjustified. 

An award of $1,000 was made but this was reduced by 50% due to the employee’s own misconduct.  No lost wages were awarded because the employee failed to take adequate steps to find alternative work.

 

Alan Knowsley

Employee’s dismissal for failure to wear safety gear and for abusive language upheld…

The Employment Relations Authority has dismissed a personal grievance claim for unjustified dismissal.  The employee was repeatedly told to wear his safety equipment but continually refused and became abusive and threatening towards his employer.

The employee was suspended and given notice of a disciplinary meeting.  After the meeting he was dismissed for serious misconduct in relation to the failure to wear the safety equipment and the abusive and threatening language.

The ERA held that the failures to follow the reasonable and lawful instructions to wear the safety equipment justified his dismissal, as did the abusive and threatening language.

The ERA said that the employer should have warned the employee that a dismissal was a possibility but in the circumstances the employee already knew that.

The ERA also said that even if the employee had been successful in his claim that it would have reduced any remedies by 100% because of his misconduct.

 

Alan Knowsley

Employee wins compensation after ban from worksite…

The Employment Relations Authority has upheld a personal grievance claim for an employee after a serious health and safety breach led to his ban from the worksite.

The employee had breached the site health and safety rules by not wearing a safety harness while working at heights.  The site owner investigated and then banned the employee from the site.

His employer relied on the ban and advised him it had no other work for him.  The ERA held that the employer should have engaged with the employee because the ban from the worksite did not mean the employer automatically had no work for the employee at other sites.  These options should have been discussed and the employer should also have carried out its own disciplinary investigation and not relied on the site owner’s ban.

$3,000 compensation was ordered for the failure to consult with the employee.  No lost wages were awarded as there was no other work for the employee because of the ban.

 

Alan Knowsley

Small employer penalised $5,000 for failure to keep wage & time records…

The Employment Relations Authority has upheld a claim by a Labour Inspector against a takeaway shop owner who failed to produce wage and time records and copies of employment agreements as required by the Inspector.

Several extensions of time were given to provide the details but the records were not produced (except for a few short periods).

The ERA held that a $5,000 penalty was appropriate given the continuing failures to comply with the employer’s obligations.

 

Alan Knowsley

Employees awarded $78,800 back pay…

The Employment Relations Authority has upheld claims by husband and wife cleaners at a hotel for unpaid wages.

The ERA held that the employer failed to keep and produce wage and time records as required by the law.  It accepted as a result that the employer had short paid the employees $39,970 and $38,832 over the last five years.

The onus is on the employer to keep proper wage and time records.  The employer may also face a penalty for its failure to do so but that has been deferred to see if it pays the wages owed.  The person responsible for the failure to keep the records has now departed and the current owners are doing their best to comply with the requirements.

 

Alan Knowsley

Employer unusually not obliged to hold job open for maternity leave…

An employee’s claim that her job was unreasonably not held open by her employer when she went on maternity leave has been dismissed by the Employment Relations Authority.

The employee worked as a support person in a small office.  The employer claimed that she occupied a key role that could not be filled by a temporary replacement because her skills could not be learnt in a short time. 

The firm expected employees in her role to be highly technologically savvy and to deal with customers to a higher level than would be common.  This made it not practical to keep her job open during the maternity leave. 

The onus is on the employer to show the position is of a crucial nature that is required to be filled by a permanent appointment and a temporary replacement is not practical.

The employer in this case was able to do that but it is a difficult test to overcome and the onus is on holding a job open in most cases.

 

Alan Knowsley

Employee jailed for theft of company secrets but Appeal Court quashes convictions…

An employee who accessed his employer’s computer system and "stole" information was sentenced to 30 months jail in the New Plymouth District Court but the Court of Appeal has quashed his convictions.

The employee downloaded the files of secret company information just before he went to work for a competitor.  The "stolen" information was located by the Police on his home and new work computers.

The District Court Judge described the employee’s behaviour as highly calculating and opportunistic and a serious abuse of trust.  The 30 months imprisonment was imposed even though there was no evidence the employee had provided the information to his new employers (despite it being on his work computer).  The theft of it alone was enough to result in the prison sentence.

However, the Court of Appeal has decided that the computer information was not property and quashed the convictions. The employee had spent 5 weeks in jail pending the hearing of the appeal. The Court of Appeal considering whether to impose an alternative conviction of obtaining a benefit but decided not to in this case as the grounds for substituting new convictions were not made out.

Alan Knowsley

Unsigned fixed term agreement not effective…

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

The employer sought to rely on a fixed term in the employment agreement.  The ERA held that the employee had never been provided with the employment agreement before he was dismissed and therefore the fixed term was not effective.

As a result there was no proper process followed, and the employee was entitled to $4,800 for lost wages, $3,500 compensation and $1,000 towards costs.

For a fixed term to be lawful the employee must have agreed to it in writing before commencing work.  The employer’s failure to get its paperwork in order will be an expensive lesson.

 

Alan Knowsley