Failure to consult on redundancy costs employer…

The Employment Relations Authority has upheld a personal grievance for unjustified dismissal from an employee who was told there was not enough work for her and given her notice of redundancy at that time.  There had been no prior process followed.

The ERA held that the redundancy was genuine due to declining sales and insufficient work for the three employees who did the same work as the dismissed employee.  No lost wages could therefore be awarded. 

It also concluded that she would have been the one made redundant, even if a proper process had been followed, because the other two employees had been employed for 26 years and 16 years.  She had only been employed three months.

Compensation for the lack of any proper process was awarded.

Alan Knowsley

Prison worker who gave a key to inmate correctly dismissed…

Unsurprisingly, the Employment Relations Authority has upheld the dismissal of a prison social worker who gave an inmate a key that was used to try to escape.

The employee denied handing over the key but the ERA found there was sufficient evidence to support the employer’s decision.

Dismissal then became inevitable due to the security risk if the worker remained employed.

 

Alan Knowsley

Successful party in employment dispute misses out on costs...

The Employment Relations Authority rejected a personal grievance claim because it held the Plaintiff was not an employee.

The Respondent sought costs but failed to provide evidence of its actual costs incurred, despite an order from the ERA that it file that evidence.  The notional daily tariff for costs of $3,500 would only be appropriate if the actual costs were at least that amount.

The ERA held it could not award any costs because it did not know what the real costs were.  Therefore it could not decide on an appropriate figure for costs.

Alan Knowsley

Unrecorded casual employment costs employer…

The Employment Relations Authority has upheld a personal grievance claim for unjustified dismissal, unpaid wages, unpaid sick leave, unpaid bereavement leave, unpaid holiday pay and compensation.

The employer claimed the employee was a casual but no employment agreement was ever signed and the employee worked regular hours, almost full time each week.

He was never paid any holiday pay, sick leave or bereavement leave and was short paid his wages.  He was also not paid the minimum wage.  Unpaid wages of $9,200 and compensation of $7,000 were ordered. 

The imposition of penalties for failure to pay minimum wages and keep proper records was deferred to see whether the employer complied with the orders made.

If you have any employee, you must have a signed written employment agreement.  Any casual employment must be clearly set out in the agreement.

 

Alan Knowsley

 

Dismissal under 90 day trial must be in writing…

The Employment Relations Authority has ruled that a verbal dismissal of an employee under a 90-day trial period is not sufficient.

The employee had been called to a meeting to discuss his performance.  This was two days before his 90-day trial period ran out.  At the meeting he was told he was dismissed under the 90-day trial period. 

His holiday pay and one week’s pay in lieu of notice were paid into his account that day.  He was not given a written letter of termination until three days after the 90-day trial had run out.

The ERA ruled that a dismissal must be more than verbal and therefore he was not dismissed within the 90-day period.

The claim for unjustified dismissal can now continue to be heard by the ERA. As he was dismissed after the 90 days this needed to be done by a proper process and none had been followed.

If the matter does not settle prior to a hearing then I expect the dismissal will be held to be unjustified, and awards of lost wages and compensation made.

 

Alan Knowsley

Unjustified dismissal leads to award of six months wages and compensation…

The Employment Relations Authority has upheld a personal grievance claim for unjustified dismissal after an employee was dismissed for safety issues.

The ERA held that the process followed was unfair because the manager who carried out the investigation and dismissal was himself a witness to events, had been guilty of the same safety breaches he was alleging (without being disciplined), had failed to put allegations to the employee fully, and had a preconceived notion that dismissal would be the outcome. 

Because the manager had witnessed the events he was investigating, and had failed to carry out the same safety breach reporting steps, he was held not to be able to bring an unbiased mind to the investigation.

The manager believed that the employee had completed a back-dated incident report but failed to put this allegation to the employee so he could respond to it.  The manager also took into account other performance concerns which were not put to the employee as part of a performance improvement process.

The manager had also displayed predetermination, of dismissal as the outcome, by stating that serious breaches of safety would result in dismissal.  He therefore had a closed mind about the penalty.

The ERA also held that there was a disparity of treatment between the dismissed employee and others involved that was unjustified.

The ERA awarded six months lost wages, less 20% for the employee’s contribution to the events, plus $5,600 compensation.

 

Alan Knowsley

Employer ordered to pay $20,000 compensation for significant indifference to employee’s welfare…

The Employment Relations Authority has found an employee was disadvantaged by his employer failing to properly implement its return to work policy following the employee undergoing major surgery.

While the employee was off work recovering from the surgery his employer commenced a restructuring process which proposed the employee’s position be made redundant.

Almost immediately on his return to work he underwent a series of interviews for alternative roles in the organisation but failed to be appointed to any of them.

The ERA held that the redundancy was genuine but that the employer had acted with significant indifference to the employee’s health and welfare and failed to follow its own policy to reintegrate him back into the workforce after his surgery.

As a result he was not able to prepare for the job interviews as well as he might and was therefore disadvantaged.  $20,000 compensation was awarded.

 

Alan Knowsley

More flexibility likely for those on paid parental leave...

The Government is proposing to increase paid parental leave from 14 to 18 weeks, and the consultation document released also includes allowing employees to return to work for a limited time without losing their paid leave.

At present being paid for any work during the leave means the paid parental leave ends.

Under the proposal, an employee will be able to work up to five days after the first four weeks parental leave.  This will enable employees to do things like training, keeping in touch, handovers and briefings, without risking their paid leave.

Employees who can come back for small tasks like this are likely to be more engaged in the workforce, and keep up to date with developments, while still retaining their entitlement to paid leave.

Alan Knowsley

Employee dismissed after failed drug results not reinstated…

The Employment Relations Authority has declined interim reinstatement to an employee dismissed after failing repeated drug tests.

The employee was randomly tested in accordance with the employer’s policy and failed the test.  He was suspended without pay pending the disciplinary investigation and further tests.

He claimed to have accidentally ingested cannabis by eating tainted cakes, and gave details of another person who also failed their employer’s random testing after eating the same cakes.

The employer checked with the other employer (with consent) and discovered that the information given was not correct.  It also obtained scientific evidence from ESR discounting the employee’s explanation as not plausible.

The employee then failed a follow up test several weeks after the original incident and was dismissed.

The ERA held that interim reinstatement would not be ordered as the balance of convenience and overall justice favoured the employer. The dismissal could be justified and reinstatement would be unlikely.

 Alan Knowsley

Employer penalised for requiring employees to refund their wages…

The Employment Relations Authority has imposed a penalty of $3,000 on an employer for demanding an employee pay it back, in cash, a significant portion of her wages on an ongoing basis to keep her job. 

This meant that the employer was in breach of the Wages Protection Act which provides that an employer cannot stipulate how an employee spends their wages.

The employer was also penalised $2,000 for failing to have employment agreements and not keeping proper wage and time records.

 

Alan Knowsley

Electrocuted employee’s dismissal justified…

The Employment Relations Authority has rejected a personal grievance claim for unjustified dismissal from an employee sacked after he electrocuted himself at work.

The employee was working on electrical lines and failed to comply with the various safety requirements about checking that the power was off before commencing work.  The employee had wrongly assumed that the power had already been shut off instead of checking himself as required.

The ERA held that the employer was entitled to find the failures to follow safety procedures could not be condoned and they could not rely on him to follow the procedures in the future.
This may be a bit surprising as I would assume being electrocuted would concentrate the mind on being more careful from then on, and that he would perhaps be the employee least likely to breach safety rules in future.

Alan Knowsley

Significant penalties for inadvertent failure to pay minimum wage…

An employer of temporary labour has been fined for an inadvertent failure to pay minimum wages to a person who did not even regard themselves as an employee.

The employer has also lost all of its contracts to provide temporary labour due to the Labour Inspector advising its customers of its prosecution.

The circumstances were that the company employed a worker and paid him on a piece rate basis with a top up to ensure it paid at least the minimum wage. 

The employee’s partner assisted him so he could work faster and earn more on the piece rate basis.  The employer knew that the partner was assisting but neither it nor the partner considered her to be an employee.

The ERA held that she was an employee, and commented that even though the error, in not paying her the minimum wage was inadvertent, it was still inclined to impose a $10,000 fine for the breach (maximum $20,000). 

However, because the company had lost all its customers, due to them being advised of the prosecution for not paying the minimum wage, it could not afford to pay such a fine and one of $1,000 was imposed instead.

Employers need to be very aware of their obligations to pay at least the minimum wage and that an inadvertent breach may still result in a significant fine.

The employer should have paid the partner as an employee, or taken formal steps to have her sign a volunteer agreement to clearly establish her status as a non-employee, or refused to allow her to assist her partner.

 

Alan Knowsley

Employee wrongly sacked awarded almost $33,0000 plus lost wages…

The Employment Relations Authority has upheld claims of unjustified disadvantage and unjustified dismissal after a CEO was suspended, and then sacked following a disciplinary process.

The ERA held that the employee was wrongly suspended without pay because he was not given an opportunity to comment on the suspension prior to it being decided on. In addition there was no right to suspend without pay despite it being in the employment agreement.

The employee was also wrongly dismissed because he was not properly advised of the allegations or of the disciplinary meeting, and was not told he could bring a support person. Other employees who had acted in the same manner (sales outside their territory) were not disciplined. Other allegations were not sufficiently serious, or too old, to be relied on.

The ERA concluded that the employer had predetermined the outcome. It awarded compensation of $20,000 plus unpaid wages (during the suspension) of $9,500, and an unpaid bonus of $3,000. The employee is also entitled to lost wages following the dismissal (still to be calculated, but could be three months).

It remains to be seen if the employee will recover any payment as the employer has gone into liquidation.

Alan Knowsley

Employer tries to enforce non existent 90-day trial…..

An employer was dissatisfied with an employee’s performance and advised the employee he was not going to keep him past the 90-day period. Unfortunately for the employer the employment agreement did not contain a 90-day trial clause.

The Employment Relations Authority held there was no proper process followed and the employee was called to a meeting with no idea what it was about.

There were no formal warnings given to the employee for poor performance, and the concerns about the employee’s interaction with other staff were not clearly addressed. There was no disciplinary action imposed at the time for the use of bad language, or follow-ups as to whether the required improvements had been met before termination.

The ERA held a fair and reasonable employer should have commenced a process of identifying to the employee deficiencies which the employer believed he had. This would give the employee an opportunity to improve his performance.

The ERA held the employee was unjustifiably dismissed and awarded $8,800 for lost wages and compensation of $5,000.

Alan Knowsley