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