Employee discriminated against in workplace for hand tremor…

An employee working as a lift technician has been dismissed after his employer discovered he had a hereditary hand tremor.

The Human Rights Tribunal upheld the employee’s claims that his employer had discriminated against him.

The Tribunal found that the hand tremor did not affect the employee’s work performance but was suspected or assumed to exist and to be a safety issue by the employer.

The Tribunal noted that the employee had worked for 5 years as a technician and had never been affected by the hand tremor at work. The tremor was slight and no medical examination had been ordered by the employer to deduce whether the condition affected his work or safety.

The employee was awarded $3,700 for lost wages and $25,000 compensation for loss of dignity and injury to feelings plus $700 for travel expenses.

The Tribunal also ordered the employer to train its senior management staff on their obligations under the Human Rights Act.

Alan Knowsley

Employment Lawyer Wellington

Employee’s iPad usage at work threatens employer’s business…

An employee working in a takeaway shop has been dismissed after getting into a disagreement with her employer over having her iPad out at work. The employer was concerned that the employee might use the device to take photos of the business’ recipes.

The Employment Relations Authority upheld the employee’s personal grievance claim for unjustified dismissed as she was fired on the spot at the beginning of one of her shifts.

The ERA found that the employee had contributed to the grievance by badgering the employer about her employment status in order to find out whether she was being dismissed. The employee had further aggravated the employer by arriving at work not in uniform.

The employer was ordered to pay the employee $3,000 for lost wages and $1,000 compensation plus $750 towards her costs.

Alan Knowsley

Employment Lawyer Wellington

Employee justifiably dismissed under 90 day trial clause after volunteering at the workplace…

An employee has been dismissed under a 90 day trial period clause for poor performance. The employee had previously volunteered at the workplace for a day prior to signing her employment agreement. The employer referred to this arrangement as a ‘pre-employment test’.

The Employment Relations Authority rejected the employee’s personal grievance claim for unjustified dismissal.

The ERA held that the 90 day trial clause was effective despite the employee’s previous work experience for the employer.

The ERA noted that there had been no discussion of payment for the number of hours she worked during the pre-employment test, and at no stage had the employee queried the non-payment, presented a time-sheet for those hours, or requested payment for that day.

The ERA found that the employee had not received an offer of employment prior to the test, and found that the employee’s employment agreement clearly stated the commencement date of employment as starting a couple of days after the test had taken place.

The ERA thus found that the employee was justifiably dismissed in accordance with the trial period clause in her employment agreement.

Alan Knowsley

Employment Lawyer Wellington

Employer’s poor records lead to higher pay out…

The Employment Court recently upheld a decision made by the Employment Relations Authority to support an employee’s claim to commission from sales.

 

The employee argued he was to receive commission when his entire sales team reached a target over 50%. The employer disputed this and claimed the employee was only entitled to commission when he was reaching the 50% target himself. The employer supported this claim by arguing that the employee did not hold a supervisor role and was therefore not entitled to claim commission from the team’s sales. The ERA rejected this as a lot of the employee’s functions were to oversee the team’s sales. The employer was not able to support its position by records of sales made.

 

The other key issue for employer’s to note is the need to have an Employment Agreement updated if an employee’s role changes. In this case the dispute was around what the employee’s role actually was. Updating the role description would have avoided a lot of the arguments.

 

Alan Knowsley

Employment Lawyer Wellington

Employer unjustifiably dismisses employee for poor performance…

An office assistant has been dismissed for poor performance after making one too many mistakes at work. The employee failed to correctly package and despatch parcels to several clients and on one occasion sent the wrong watch and repair to a customer.

The Employment Relations Authority upheld the employee’s personal grievance claim for unjustified dismissal.

The ERA held that the employer failed to act as a fair and reasonable employer could have done in the circumstances by not providing the employee with a full opportunity to improve her performance.

The ERA also found that the employer had failed to put the employee on notice that her employment was in jeopardy.

The ERA ordered the employer to pay the employee three months’ lost wages and $7,500 compensation for humiliation, loss of dignity, and injury to feelings plus $1,750 towards her costs.

Alan Knowsley

Employment Lawyer Wellington

Employee awarded $14,000 compensation after being made redundant…

An employee was made redundant and given three weeks’ notice by his employer under the guise that his role within the company was no longer economical.

The Employment Relations Authority upheld the employee’s personal grievance claim for unjustified dismissal.

The ERA found that the employee had not been adequately consulted about the redundancy, and that the redundancy was not genuine. The ERA held that the employer had ulterior motives for getting rid of the employee, namely his poor performance.

The ERA awarded the employee $15,000 compensation for hurt and humiliation. The employee had been working for the employer for over 20 years and was deeply affected by his dismissal. The employee noted that his employer was absent on his last day of work and did not offer a reference, or organise a farewell function.

Compensation was reduced by $1,000 because the employee breached his good faith obligations by applying for new employment while at work.

Alan Knowsley

Employment Lawyer Wellington

Employee dismissed after forcing elderly man to make her cups of tea…

An employee working as a Community Support Worker has had her personal grievance claim for unjustified dismissal rejected by the Employment Relations Authority.

The ERA held that the employer carried out a comprehensive and fair investigation into a complaint made against her by one of her clients. The client was a frail and elderly man who alleged that the employee had abused her position by requesting cups of tea and making him do the housework while she sat on the couch.

The ERA noted that the employee had been informed of the serious nature of the matter, and that dismissal was a possibility. The employee was advised that she could bring a support person to the disciplinary meetings, and was provided with all of the relevant information.

The employer considered all of the potential options open to her but noted that the client no longer wanted the employee in his home. The employer genuinely considered the employee’s response to the possibility of her dismissal but ultimately decided that her trust and confidence in the employee had gone. This was an action that a fair and reasonable employer could take in all of the circumstances.

Alan Knowsley

Employment Lawyer Wellington

Employee unjustifiably dismissed after racking up $23,350 phone bill…

An employee has been dismissed after incurring $23,350 in data charges while on holiday in Sri Lanka. The data use was spread across a variety of apps including Facebook, Snapchat and Instagram.

The Employment Relations Authority dismissed the employer’s claim to make the employee pay for the bill himself, and upheld the employee’s personal grievance claim for unjustified dismissal.

The ERA held that the reasons for the employee’s dismissal were justifiable but found that the dismissal process was unfair. The employee was given no opportunity to explain why the phone bill was so large, and on investigation analysis showed that the use was consistent with sync usage rather than active internet browsing.

Employers must remember to consult with, and genuinely consider employee’s responses before dismissing them.

The ERA ordered the employer to pay $6,000 in compensation for loss of dignity and injury to feelings.

Alan Knowsley

Employment Lawyer Wellington

Employer’s claim of theft of company secrets fails…

An employer accused a senior employee of breaching terms in his employment agreement by setting up a competing business and stealing company information to assist the competing business.

The Employment Relations Authority found that the employee had breached his employment agreement by incorporating a company of which he was a director without first obtaining written consent from his employer. However, the ERA declined to award a penalty for this breach as it caused no loss to the employer.

The ERA held that the employee had otherwise not breached his employment agreement. The employer had argued that the employee wined and dined business clients on the company credit card with the intention of diverting them to his business. The ERA found that there was no evidence that this was the purpose for the meeting, and held that the spending was a legitimate business expense.

The employer also alleged that the employee took confidential information from his business including secret information including pricing. The ERA found that the employee had not physically removed the information or copied or memorised it. The ERA held that the employee knew about the employer’s pricing structure because he was responsible for setting it. However, pricing could only be fixed for six months at a time, and any information that the employee had was now out of date.

Alan Knowsley

Employment Lawyer Wellington

Penalties for not complying with rules on employment documentation...

In two recent cases employers have been penalised by the Employment Relations Authority for failing to have or provide the required employment documentation.

In the first case an employer provided its staff with draft written employment agreements but did not follow up to ensure these were finalised and signed. It had decided not to do so when staff said they did not want written agreements. That was not an excuse for not providing written agreements for all staff and a penalty of $3000 was imposed by the ERA.

In the second case an employer failed to provide copies of wage and holiday records to the Labour Inspector upon request. The Era imposed a penalty of $6500 on the employer and ordered it to provide the records.

As can be seen from these examples it is expensive to ignore your responsibilities to provide documentation. All employers must have written employment agreements for all employees. They must keep a signed copy on file and also keep copies of all drafts provided to an employee to consider. In addition all employers must keep accurate wage and leave records and provide those to a Labour Inspector on request.

Alan Knowsley

Employment Lawyer Wellington

Employee resigns after colleague says ‘good morning’…

A shop employee stormed out of an Auckland store after his colleague wished him a good morning. The two workers had an agreement not to speak to each other in the workplace which was reluctantly agreed to by management. The arrangement was put in place after the employee’s colleague wrote "I am gay" on his name badge. The employee has since resigned, saying his employer failed to prevent harassment in the workplace.

The Employment Relations Authority rejected the employee’s personal grievance claim for unjustified dismissal, and praised the supermarket for its efforts to resolve the dispute between the workers and to keep them both employed.

The ERA held that the employee had resigned voluntarily, and noted that the employer had conducted a formal investigation into the employee’s allegations, and had taken steps to address the employee’s concerns and to encourage him to return to work.

Alan Knowsley

Employment Lawyer Wellington

Employee dismissed after raising health and safety concerns in his workplace…

An employee working as a driver was dismissed after he complained to his employer that his vehicle was unsafe to drive. The employer concluded that there was nothing wrong with the vehicle and instructed the employee to keep working. The employee refused to do so, and became abusive towards his manager.

The Employment Relations Authority upheld the employee’s personal grievance claim for unjustified dismissal. The ERA held that the employer failed to act as a fair and reasonable employer could in the circumstances by failing to raise its concerns with the employee, and by failing to provide the employee with relevant information relating to the disciplinary investigation. As a result, the employee was not fully or fairly informed of the employer’s concerns and had no opportunity to comment and respond to them before he was dismissed. Accordingly, the employer was unable to genuinely consider the employee’s explanation for his conduct. 

The ERA also found that the employer had failed to sufficiently investigate the disciplinary allegations. The employee’s manager was the leading investigator and found that it was not necessary to collect information from other witnesses as he had already formed the view that the employee’s conduct was threatening, disruptive, abusive and difficult. The ERA held that it was inappropriate for the manager to conduct the disciplinary investigation when he was the main witness, and found that the decision to dismiss the employee was predetermined.

The ERA ordered the employer to pay $10,030 for lost wages and $4,000 compensation for distress plus $2,000 in costs.

Alan Knowsley

Employment Lawyer

$6,000 compensation after inhaling cleaning fumes…

Employers must ensure that they maintain a safe workplace for their employees or else they may be required to pay compensation.

An employee suffered headaches, sore eyes, respiratory problems, vomiting and diarrhoea after inhaling chemicals used to clean the workplace. The employer told the employee that the workplace was safe and ordered him to keep working. 

The Employment Relations Authority upheld the employee’s personal grievance claim for unjustified disadvantage. The ERA found that the employer had breached its contractual obligation to the employee to provide a safe and healthy working environment. The employer had also failed to act as a fair and reasonable employer could by requiring the employee to continue working after becoming aware that he was suffering physical discomfort from working in the hazardous environment. The ERA noted that where work is not a matter of urgency, employees should be removed from the workplace even if their physical effects do not require immediate medical attention.

The ERA held that the employee was also disadvantaged after he was required to continue working after receiving a medical certificate prohibiting him from doing so. This was because the employee’s health and safety coordinator failed to communicate clearly to the employee’s supervisor that the employee was to be assigned different duties.

The ERA awarded $6,000 compensation for hurt, humiliation and loss of dignity after reducing the award by 25 per cent because of the employee contributing to the situation by accepting the employer’s directive to return to work. He should have spoken up about his medical certificate requiring a change of duties during his recovery.

Alan Knowsley
Employment Lawyer Wellington

Employer unlawfully deducts employer KiwiSaver contribution from employee’s hourly wage…

An employee had his employer KiwiSaver contribution deducted from his hourly wage after his employer added the term to his already signed employment agreement. The employee raised objections to the wrongful deductions and was later dismissed for serious misconduct.

The Employment Relations Authority held that the employer and employee had not mutually agreed to depart from the default position that an employer’s compulsory contributions to KiwiSaver are to be paid on top of an employee’s wages. The ERA found that the varied agreement had not been bargained for in good faith, and was unlawful. 

The ERA upheld the employee’s personal grievance claim for unjustified dismissal as the employer failed to provide the employee with all the relevant information relating to his dismissal or the opportunity to comment on that information before he was dismissed. The ERA noted that the employer failed to act as a fair and reasonable employer could by not undertaking a sufficient investigation into the employee’s alleged misconduct, and by failing to adequately raise its concerns with the employee before dismissing him.

The ERA awarded wage arrears for the employer’s unlawful deductions, and ordered the employer to pay the employee $6,210 for lost wages. The employee was also awarded $3,500 compensation for hurt, humiliation and injury to feelings.

It is important that employer’s ensure that any variations to an employee’s employment agreement are mutually agreed to otherwise the term will not be valid.

Alan Knowsley
Employment Lawyer Wellington

Ineffective trial period costs employer $10,840…

An employee working as a barista was dismissed over the telephone after calling in sick. The employer argued that the dismissal was justified as it was in accordance with the statutory 90-day trial period set out in her employment agreement.

The Employment Relations Authority upheld the employee’s personal grievance claim for unjustified dismissal. The employee commenced her employment approximately a week and a half before receiving and signing her contract. The ERA held that she was already an existing employee, and therefore the trial period did not apply. 

The ERA found that the employer failed to act as a fair and reasonable employer could in the circumstances, by failing to advise the employee that her employment was in jeopardy due to her slack timekeeping and attendance. Thus the employee was never given the opportunity to explain her conduct.

The ERA awarded $8,840 in lost wages, and $1,500 compensation for humiliation, loss of dignity and injury to feelings. The ERA also ordered the employer to pay a penalty of $500 to the employee for the non-provision of accurate payroll records.

It is crucial that employers provide prospective employees with individual employment agreements before they start work, or they risk paying reparation!

Alan Knowsley

Employment Lawyer Wellington