Employee’s dismissal for assault overturned…

An employee was dismissed after he allegedly assaulted another person at his workplace. The employee claimed that the person’s injuries were self-inflicted or caused by another person.

The Employment Relations Authority rejected the employee’s personal grievance claim for unjustified dismissal, and concluded that the employer had acted as a fair and reasonable employer could in the circumstances by finding that the employee was guilty of the assault.

In a recent judgment, the Employment Court overturned the Authority’s decision. The Court found that the employer did not have enough sufficient and reliable evidence to hold the employee responsible for the assault. The Court noted that the employer needed to have conducted further inquires into the evidence before drawing adverse conclusions about the employee’s guilt.

The Court held that there were also significant defects in the dismissal process which resulted in the employee being treated unfairly. The Court stated that the employer acted in bad faith when she rejected the employee’s request for a postponement of the investigation while the police decided whether to lay charges. In doing so, the employer went against its usual practice, and gave no reasons as to why. As a result, a report was produced without the employees input.

The Court also criticised the employer’s investigator for not taking into account the police’s decision not to prosecute, and noted that it was ‘disturbing’ how the investigator passively accepted everything the alleged victim said about the alleged offending, over the word of a long-standing employee. Additionally, the Court condemned the decision-maker for failing to make an independent judgment as to whether the employee’s dismissal was justified and for failing to question or challenge any aspect of the investigation.

The Court awarded the employee three months lost wages plus $20,000 compensation for humiliation, loss of dignity and injury to feelings. The Court also ordered the employee to be reinstated in his former position.

Alan Knowsley
Employment Lawyer Wellington

Accidental death of employee costs employer over $137,000…

An employee has fallen to his death through an insecure hatch. The District Court has convicted the employer under the Health and Safety in Employment Act for failing to ensure the safety of the employee while at work. The Court held that the incident was foreseeable, and the employer had failed to take all practicable steps to ensure the hatch was safe. The Court noted that the accident could have been prevented if the hatch had been guarded by rails.

The Court fined the employer $48,000. The Court took into account the fact that the employer had paid the employee’s family nearly $54,000 since the death, and had also paid for other employees to fly to his tangi, which the company helped contribute to. The Court further ordered the employer to pay the employee’s partner $35,000 in reparations.

Employers must take all practical steps to prevent harm coming to employees (and others). Make sure you check your workplace to identify all hazards, then eliminate or minimise them. A failure to do so can have tragic and expensive results.

Alan Knowsley

Employment Lawyer Wellington

Employee ordered to pay employer over $4000…

An employee working as a truck driver abandoned his employment after he failed to report to work.

The Employment Relations Authority held that the employee had breached his individual employment agreement and caused a direct loss to his employer. Accordingly, the employee was held liable for those losses.

The employee’s absence from work meant that the employer was unable to fulfil its contract with its client. This resulted in a loss of income for the employer as well as an additional fee which was charged by the client for having to hire another truck and driver.

The employee also breached his contract by charging over $1,000 of fuel to his employer for his own personal vehicle, and by spending almost $200 on unauthorised phone calls. The employee failed to display his current road user charge label, and exceeded the total number of occupants specified on his truck’s loading certificate. The employer was issued an $800 fine as a result.

The ERA ordered that the employee pay his employer over $4,000 for the loses caused by the breaches of his employment agreement.

Alan Knowsley
Employment Lawyer Wellington

Requiring targets be met not bullying...

In a recent Employment Relations decision an employee’s personal grievance alleging bullying was rejected. The employee was told (along with others) that he needed to meet his performance requirements. The ERA noted that just because the employee found the comments irritating, it did not mean that he was being bullied.

 

An employer is allowed to set fair targets and expect them to be met. They need to be consistently applied.  In general, two employees with the same level of experience and skills etc should be treated consistently. An employer cannot impose a lower standard for one and hold another to a higher standard.

 

Also when it comes time to measure and deal with poor performance employees need to be treated consistently. An employer cannot use the process to get rid of a non performing employee they do not like while not dealing in a consistent way with a well liked but equally non performing employee.

 

Alan Knowsley
Employment Lawyer Wellington

Consultation with employees is required when updating your company’s roster…

An employee who worked in customer service resigned after her employer changed the roster so that she had to work in the afternoons instead of her usual morning shift.

The Employment Relations Authority rejected the employee’s personal grievance claim for unjustified disadvantage. The ERA held that the employer had the right to unilaterally change the roster without attaining the employee’s agreement.  However, under the individual employment agreement the employer was required to consult with the employee about any significant changes to work hours, prior to the changes being enacted. The ERA noted that consultation was also required under the duty of good faith.

The ERA found that despite the employer failing to consult with the employee before the changes were made, the employee did not suffer any disadvantage. This was because the new roster did not take effect until six days after the employer eventually consulted with the employee.  Additionally, the employment agreement did not provide for any minimum period of prior notice.

The ERA noted that the employer had genuinely considered the employee’s concerns about the new roster, and had not adopted a fixed position in order to get rid of the employee as the employer desperately required her experience on the later shift.

Alan Knowsley
Employment Lawyer Wellington

ERA holds employers to a higher standard when they are interviewing redundant employees for a new role…

An assistant social worker was made redundant after her workplace underwent significant restructuring. The employee was appropriately consulted about the disestablishment of her role, and was told to apply for the position of a youth worker under the new structure. The employee was unsuccessful in regaining employment.

The Employment Relations Authority held that the employer did not breach any terms of the employee’s collective agreement in regards to redeployment, and reconfirmation. The ERA accepted that at the time of the employee’s dismissal there were no other positions available into which she could have been redeployed. The ERA noted that redeployment into the youth worker role was not appropriate as it was significantly different from her previous position. Likewise, reconfirmation was not offered for the same reason.

The ERA therefore held that the employer was justified in carrying out an assessment exercise to gauge whether the employee was suitable for the youth worker role.

The ERA held that the selection process adopted was not one that a fair and reasonable employer could have carried out in all the circumstances. The ERA held that the employer did not undertake a thorough review of the employee’s attributes, capabilities and work performance in her previous role, and did not interview any of the employee’s previous managers or supervisors in relation to whether she would be an appropriate person for the position. Instead, strong emphasis was placed on her performance at the interviews. As a result, the employee was unjustifiably disadvantaged.

The obligations on the employer in this case are more onerous than when interviewing a potential new employee as the employer owes a duty of good faith to the employee already.

The ERA awarded $5,000 compensation for humiliation, loss of dignity, and injury to feelings.

Alan Knowsley

Employment Lawyer Wellington

Employee fails to read employer’s letters so loses case…

An employee working for a small business was made redundant and raised a personal grievance over the process followed and the genuineness of the redundancy. The Employment Relations Authority held that the employer had genuine reasons for the redundancy as the business was in financial strife. The employee alleged a failure to consult but the ERA held that consultation had taken place. The employee had failed to read the letters he was given.

 The ERA found that the process leading to the employee’s redundancy was what a fair and reasonable employer could have done in the circumstances. The employee had attended meetings and received multiple letters regarding the decision, and the basis for it. The ERA held that the employee had been consulted about his redundancy, and noted that the employee could not turn a blind eye to his employer’s efforts to seek his views by choosing not to read his letters.

The ERA dismissed the employee’s personal grievance.

 

Alan Knowsley
Employment Lawyer Wellington