Employer gets 90 day and all other processes very wrong but employee 70% at fault...

A retail manager dismissed under a 90-day trial period has succeeded in her personal grievance claim for unjustified dismissal.

The Employment Relations Authority found that the employee was already employed when she signed the agreement to a 90-day trial period.  Therefore the trial period could not apply.  The dismissal without a proper process was unjustified.  Lost wages of $11,000 were awarded.

The employer also claimed that the employee abandoned her employment by not turning up for three days without notification to the employer as required in her agreement.

This claim was rejected by the ERA because the employee had been off sick and had notified another staff member of her illness.  There was no intention to abandon her employment.  The employer should not have assumed she had abandoned her work without making contact with her first. The employee was awarded a further $6,000 for hurt and humiliation. 

However, the ERA found that the employee contributed to her dismissal by failing to notify her employer directly of her absence, and failing to follow reasonable instructions on how to conduct the business.  All remedies were reduced by 70% for the employee’s contribution.

 

Alan Knowsley

 

 

 

 

School sleepover staff awarded back pay…

The Employment Court has upheld a claim by 11 staff of two boarding colleges for extra pay relating to sleepovers. They were required to be available to attend to incidents in the boarding houses of their schools over night.

The Court held that the Minimum Wages Act applied to the staff even though they were paid a salary rather than hourly wages. It found they were entitled to the minimum wage for each hour they were on duty (whether allowed to be asleep or not).  The staff worked up to 70 hours per week when nights on duty were calculated in to their pay. The expected bills for back pay could be many tens of thousands of dollars for each school.

 

Alan Knowsley

Are you a breastfeeding-friendly employer?

The Employment Relations Act requires employers to provide breaks, and facilities, for employees who wish to breastfeed during work hours…

Employers may be penalised by the Employment Relations Authority if they don’t meet required standards. Failure to accommodate breastfeeding may also constitute sexual discrimination under the Human Rights Act.

Fortunately, it’s relatively easy to comply.  A proactive approach also helps establish the employer’s reputation as a “family friendly” workplace.

Breastfeeding

Breastfeeding includes feeding an infant, and expressing milk.

“Expressing” is a process by which a woman extracts her milk manually or with a breast pump.

Facilities

Women who breastfeed have simple needs.

The employer needs to provide a hygienic, private, space. A lockable room is generally sufficient. Employees who use electric breast pumps also need a power point. If a woman expresses, she’ll also need access to a fridge (communal is fine) and a place to store equipment.

Facilities do not need to be permanent. For example, meeting rooms or offices may be booked for breastfeeding purposes.

If workplace facilities cannot be found, facilities could be offsite. Multiple employers may share facilities.

Breaks

The Employment Relations Act provides for unpaid breastfeeding breaks, in addition to meal and rest breaks, as a legal minimum.

However, employers and employees may agree that breaks will be paid, or to use meal and rest breaks for breastfeeding.

The length, timing, and number of breaks differ between individual employees. As a rough guideline, an expressing mother might take 2-3 breaks of 10-20 minutes each in a standard 8 hour day.

Some women will be able to work while breastfeeding. A woman may breastfeed her baby in a sling or use a hands-free breast pump while completing other work. However, employers should not expect or demand that a woman multi-task.

 

 

Redundancy decision upheld as fair and reasonable…

The Employment Relations Authority has dismissed a personal grievance claim for the unjustified dismissal of a long-standing employee based on a redundancy.

The employer had decided to make its processes more efficient and they needed a person with more IT skills.  They decided that given the employee’s lack of IT skills that it was not practical to retrain him with those skills and so made him redundant, and contracted in external providers with the necessary IT skills.

The ERA accepted that these were decisions a fair and reasonable employer could make and it could not substitute its views for those of a reasonable employer. 

As the employer had also followed a fair and reasonable process by consulting with the employee there was no unjustified dismissal.

 

Alan Knowsley

Clear and consistent rules on staff purchases result in justified dismissal...

An employee has lost her personal grievance case for unjustified dismissal as the Employment Relations Authority held that the employer’s rules on staff purchases were very clear and consistently applied.

The employee had taken an item from the shop stock and forgotten to pay for it that day.  She was rostered off the next two days but went in on the second of the days to pay for the item.  The matter was reported to management and further investigations revealed other apparent breaches of the staff discount card policy.  These were also investigated and after a disciplinary process the employee was dismissed.  She had allowed others to purchase goods on her staff discount card which was not allowed (apart from a spouse).

The ERA held that a fair process was followed, that the policies were very clear on both staff paying for purchases at the time, and use of the discount card, and that the policies were consistently applied.  The ERA upheld the dismissal as what a fair and reasonable employer could do in the circumstances.

Alan Knowsley

Firing employee for redundancy & advertising her job costs employer...

The Employment Relations Authority has upheld a personal grievance for unjustified dismissal after the employee was told the company could not afford to pay her.  She was told to hand in her equipment and leave the workplace.

This process would have lead to a finding against the employer even if the redundancy was genuine because no proper process was followed.  There was no opportunity given to comment on the redundancy before it was decided on.

To make matters worse the employer advertised the employee’s job only five days after dismissing her.

Compensation and lost wages of nearly $9,000 were awarded.

 

Alan Knowsley

Failure to put guard on machine costs employer $38,000…

A manufacturer has been fined for breaching Health & Safety rules after an employee suffered burns at work.

The employee tried to free a jammed machine but his clothing got entangled and he was badly burnt.

The machine did not have sufficient guards on the chain to prevent accidental entanglement. 

The District Court fined the company $33,000 and ordered reparation of $5,000.

If you need help getting your health & safety systems up to scratch give me a call on (04) 473 6850.

 

Alan Knowsley