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