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