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