Employer ordered to pay $87,000 for his employment law breaches…

A Labour Inspectorate has investigated an employer and found him to be in breach of several employment laws. The employer failed to pay his employees the minimum wage and incorrectly paid his employees for working on public holidays. The employer gave the employees an extra $50 instead of their minimum employment entitlements.

The employer also failed to maintain records of his employees’ hours and failed to keep copies of their employment agreements.

The Employment Relations Authority ordered the employer to pay $23,000 in penalties for his employment law breaches plus $64,000 in arrears to the employees.

Alan Knowsley

Employment Lawyer Wellington

2 week notice period held to be satisfactory for termination under 90 day trial…

An employee was given two weeks’ notice of his employer’s decision to dismiss him under a trial period provision in his employment agreement. The employee claimed that he was entitled to three months’ notice upon the termination of his employment and was therefore unjustifiably disadvantaged by his employer.

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

The ERA found that the employee’s employment agreement was silent as to the notice period required for termination under a trial period. The employer had therefore relied upon the Misconduct/Substandard Work performance notice period of 2 weeks.

When an employment agreement does not expressly provide for a notice period, a reasonable period of notice is inferred.

The ERA noted that there is no mechanical yardstick as to what constitutes reasonable notice. When deciding what is a reasonable period of notice, the ERA will look at the following factors:

• The nature of the employment;
• The character of the employment relationship;
• The seniority of the position;
• The length of service of the employee;
• The age of the employee;
• The availability of other employment for a person of the employee's experience and qualifications or training; and
• The individual circumstances of the particular employer and employee.

The ERA held that the 2 week notice period was reasonable in these circumstances as the employee was aware that his employment was uncertain and was not guaranteed as extending beyond the statutory 90 day trial period.

The preferable course is to include a specific notice period in the agreement so there is no argument over the length of notice that has to be given.

Alan Knowsley

Employment Lawyer Wellington

Employee justifiably dismissed for serious misconduct…

An employee has been dismissed after failing to follow drug handling policies.

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

The ERA held that the employee had committed a serious misconduct by breaching the employer’s disciplinary policy, code of conduct and by failing to meet professional standards.

The ERA rejected the employee’s claims that her breach was brought about by a lack of supervision.

The ERA noted that the employer had committed some procedural breaches while undertaking its disciplinary process, however these were found to be minor and did not amount to the employee suffering any unjustified disadvantage.

Alan Knowsley

Employment Lawyer Wellington

Medical incapacity botch up costs employer $48K…

An employee has been dismissed for medical incapacity after he was declared medically unfit for work and was placed on indefinite sick leave.  The employee did not have a medical condition, but was stressed out and unhappy in the workplace. 

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

The employer terminated the employee under a medical incapacity clause in the employment agreement, but failed to follow the set procedure set out in the clause. 

The employer was required to arrange for the employee to undergo a medical examination by a registered medical practitioner and was supposed to give the employee a chance to obtain his own medical report.  The employer was required to take into account the reports when assessing the employee’s fitness for work. However, at no stage in the dismissal process did the employer seek a medical report, and instead the employer dismissed the employee on the basis of a medical certificate the employee provided for sick leave purposes. 

The Employment Court ordered the employer to pay the employee $48,000, which included $29,700 in compensation for hurt, humiliation, and injury to feelings.

Alan Knowsley
Employment Lawyer Wellington

Employers must give their employees written employment agreements…

In a recent survey undertaken by Statistics New Zealand, it has emerged that around 1 in 10 New Zealand workers do not have a written employment agreement.

The survey found that a higher number of part-time and causal workers did not have employment agreements as well as those working in high-risk industries such as forestry, fishing, and farming.

Under the Employment Relations Act, it is a legal requirement to have a written employment agreement.

The agreement must include the names of the employee and employer, a description of the work to be performed and where the employee is to perform that work, as well as an indication of the employee’s hours and pay rate. The agreement must also record how employment disputes will be resolved.

Employers must keep a copy of all draft agreements provided to the employee/potential employee as well as a copy of the signed agreement.

Employers are required to comply with the Act and can be penalised if they are found to be in breach of the minimum standards of employment.

Alan Knowsley

Employment Lawyer Wellington

Employees unfairly dismissed after being sacked prior to starting their employment…

Two employees have been dismissed after allegedly not turning up to work on their first day. The employees stated that during their employment negotiations their employer had agreed that they could start work one week later than planned so that they could attend a funeral.  The employer denied varying the starting date of their employment and dismissed the employees after he was unable to get in touch with them to discuss why they had not shown up for work.

The Employment Relations Authority upheld the employees’ personal grievance claims for unjustified dismissal.

The ERA held that the employer had failed to act as a fair and reasonable employer could in all of the circumstances by dismissing the employees without following any dismissal process.

The ERA held that the employer could not rely on a 90 day trial period clause to protect him as the employees were dismissed before the trial period began.

The ERA ordered the employer to pay the employees $8,750 and $14,280 in lost wages respectively plus $7,000 and $10,000 in compensation for humiliation, loss of dignity and injury to feelings.

Alan Knowsley

Employment Lawyer Wellington

Employers must follow correct redundancy process…

An employee was made redundant several months before his workplace closed down. The employee was told to leave the workplace immediately, and did not serve his two-week notice period.

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

The ERA held that the employer acted as a fair and reasonable employer could in all of the circumstances by making the employee redundant as the company was in deep financial strife and could not afford to pay the employee.

However, the ERA noted that the employer carried out a flawed redundancy process by failing to adequately consult with the employee about his redundancy. The ERA noted that the employer failed to tell the employee why he was being dismissed and that he was the only employee being let go.

The ERA ordered the employer to pay the employee two weeks lost wages plus $4,000 in compensation for humiliation, loss of dignity, and injury to feelings. The employer was also fined $1,000 for not giving its employees written employment agreements.

Alan Knowsley

Employment Lawyer Wellington

Additional benefits agreed to in employment negotiations should be included in written agreements…

An employee has resigned after failing to receive a performance bonus, flights to the Philippines and a food allowance. The employee claimed that the employer agreed to pay these additional benefits to him during their employment negotiations.

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

The ERA noted that while the parties had discussed the provision of a meal allowance, the employee had agreed to an increase in salary which would compensate for this.

The ERA found that the employer had not agreed to the other benefits as it was not the employer’s normal practice to provide them, and the approval of the Board was required.

The ERA noted that even if the additional benefits had been agreed to, there was no certainty around those terms to make them enforceable. The ERA noted that the employee’s employment agreement required any additional terms to be recorded in writing.

Employee justifiably dismissed for medical incapacity…

An employee has been dismissed 22 months after suffering a serious spinal and pelvic injury while at work.

The employee returned to work after a year, under a graduated return to work programme organised by ACC. The employee completed light duties and had built up to working 16 hour weeks when his occupational medical specialist told him that he would not be able to return to work in his pre-injury role.

The employer then terminated the employee’s position because of medical incapacity.

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

The ERA held that the employer had acted as a fair and reasonable employer could in all of the circumstances by dismissing the employee when he could no longer perform the work he was employed to do.

However, the ERA found that the employer had unjustifiability disadvantaged the employee by not having provided him with outplacement assistance such as assistance with CV writing and interview skills. The employee had been offered a morning tea and a written reference, but no other support was provided to him.

The ERA reasoned that the employee was entitled to outplacement assistance as he was dismissed as a result of his incapacity rather than for any deliberate or careless fault, such as misconduct. The ERA noted that his dismissal was akin to a dismissal on the grounds of redundancy, and thus the employer was obligated to treat the employee fairly when carrying out the dismissal. The ERA noted that fair treatment can include providing the employee with counselling, career and financial advice, retraining, and related financial support.

The ERA awarded the employee $2,000 in compensation for the loss of benefit of receiving outplacement assistance, and $1,000 in compensation for injury to feelings.

Alan Knowsley

Employment Lawyer Wellington

90-day trial provisions must have a start date says ERA!

In a recent case, four employees resigned from their job and have since applied to the Employment Relations Authority to uphold their personal grievance claims for unjustified dismissal.

At the time of their resignation, the employees were on a 90-day trial period.

The employees argued before the Employment Relations Authority that the 90-day trial provision in their employment agreements was nullified as the clauses did not state when the trial periods would begin.

The ERA noted that in order for a 90-day trial period to be legally valid, the provision must contain a start day.

The ERA held that the individual employment agreements did not reasonably imply that the 90-day trial started on the first day of the employees’ employment.

The ERA noted a number of circumstances where parties may agree that the 90-day trial period should start after the first day of employment, for example if some offsite training is to take place before an employee begins work, if there is a temporary overseas placement, or if there is a lengthy induction period.

This case is a good reminder for all employers to ensure that their 90-day trial provisions contain a start date and comply with employment law.

Alan Knowsley

Employment Lawyer Wellington

Employer penalised over $4,300 after worker found not to be a volunteer…

An employee has been dismissed after working 272 hours and only being paid $92 which was given to her in cash on the day she was dismissed.

The employee applied to the Employment Relations Authority seeking arrears of wages.

The employer argued that the employee was a volunteer and thus there was no requirement for him to pay her.

A person will not be a volunteer if they have some expectation of payment or reward, or receive some reward for performing their work.

The employee provided the ERA with evidence of text messages which referred to an employment contract and wages which were being prepared for her.

The employee noted that the employer had told her on multiple occasions that her wages would be ready the following week, but that there was always an excuse as to why they were unavailable.

The ERA held that the employee was not a volunteer, and awarded her over $4,000 in outstanding wages plus over $300 in holiday pay.

Alan Knowsley

Employment Lawyer Wellington

New law allows employees to refuse work on Easter Sunday…

On 29 August 2016, a new law was passed amending the rules around when employees are required to work, or to be available to work, on Easter Sunday. This follows moves to allow some shop trading on Easter Sunday.

Under the new law, employees will be entitled to refuse work on Easter Sunday, and will not be required to provide their employer with a reason for their refusal.

Employers must now give their employees written notice of their right to refuse work on Easter Sunday 4 weeks in advance of the relevant Easter Sunday, or if an employee has been working for less than 4 weeks, as soon as is reasonably practicable. The notice must be delivered to the employee in person or by email, or must otherwise comply with any requirement specified in the employee’s employment agreement.

Employees, who decide not to work on Easter Sunday, must give written notice to their employer of their intention no later than 14 days after receiving notice. In the case of an employee whose employment started 14 days or less before the relevant Easter Sunday, they must advise their employer as soon as is reasonably practicable after receiving the notice.

It is important that employers comply with their new obligations as employees will be entitled to raise a personal grievance and seek compensation, if a condition that they work on Easter Sunday is imposed, or if they are not told that they can refuse to work on that day.

Alan Knowsley

Employment Lawyer Wellington

Employee awarded $15,000 compensation after deductions made from holiday pay

An employee has resigned after over $1,700 was deducted from her holiday pay for training costs. The employee raised her concerns with the employer on two occasions but the employer failed to address them.

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

The ERA held that the employer was not entitled to make deductions from the employee’s holiday pay unless expressly provided for in the Holidays Act.

The ERA also found that the employer had breached the employee’s employment agreement by failing to pay the employee into her bank account, not giving the employee notice of a change in roster, and by not conducting an annual performance review or settling employment objectives.

The ERA ordered the employer to pay a $2,000 penalty, and $15,000 to the employee in compensation for humiliation, loss of dignity and injury to feelings.

Alan Knowsley

Employment Lawyer Wellington

Employee awarded $2,500 after being dismissed for drinking alcohol while away on business…

An employee has been dismissed after a formal complaint was made about his behaviour while he was away on business. The employee was drinking at a bar when he called another patron a “bum”. The employer decided to terminate the employee as the company was concerned about the effect the employee’s conduct would have on the reputation of the company.

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

The ERA held that the employee’s conduct could not be said to have the potential to cause trouble for the employer’s business as the alleged misconduct occurred at a pub where all the patrons were drinking. The ERA also noted that there was evidence of pub banter including evidence that the patron had been acting cheekily towards the employee. Accordingly, the employer could not justifiably conclude that the taunting was serious misconduct.

The ERA ordered the employer to pay the employee $5,000 in compensation, however this figure was reduced by 50 per cent as a result of the employee’s contributory behaviour.

Alan Knowsley

Employment Lawyer Wellington

Poor investigation costs employer $67,000 in damages…

An employee has been dismissed after being accused of accessing “sex related” websites on his work computer during work hours. The employer also alleged that the employee had jammed the office printer with downloaded material of a highly personal nature from dating websites.

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

The ERA found that the employer failed to act as a fair and reasonable employer could in all of the circumstances by failing to obtain evidence which supported their allegations.

The ERA noted that a forensic report confirmed that dating websites had been accessed on the employee’s work computer but that no pornographic sites were opened.

The ERA found that the employee was open about his internet use at work and that it fell within a reasonable level of personal use which was permitted by the employee’s employment contract.

The ERA ordered the employer to pay the employee over $60,000 for lost wages plus $7,000 in compensation for humiliation, loss of dignity and injury to feelings.

Alan Knowsley

Employment Lawyer Wellington

Be careful when dismissing an employee for medical incapacity…

An employee has been dismissed from his job one month after suffering a heart attack. The employee advised his employer that he would be off work for some time as he had to undergo open heart surgery. The employer considered that the company would be severely impacted by his absence and advised him to stand down.

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

The ERA noted that an employer cannot terminate an employment contract when an employee is ill or has been in the past.

The ERA noted that in order to dismiss an employee for medical incapacity, the employer must have medical evidence which shows that the employee is unable to work long term (not just a short term incapacity). In these circumstances, an employer must follow a fair dismissal process and ensure that the employee has an opportunity to provide the employer with information such as medical reports.

The employee was awarded over $10,000 for lost wages plus $6,000 in compensation for humiliation, loss of dignity and injury to feelings.

Alan Knowsley

Employment Lawyer Wellington

ERA rejects employee’s PG after she prematurely resigns…

An employee has resigned after a complaint was made about the employee by one of her colleagues. The employer undertook a disciplinary investigation and made a finding of serious misconduct. The employee received a written warning and was required to change her roster temporarily to avoid working with the complainant until a mediation between the two of them could take place. The employee agreed with the employer’s finding but did not accept the roster change.

The Employment Relations Authority rejected the employee’s claim for constructive dismissal.

The ERA held that there were no substantial deficiencies in the disciplinary process undertaken by the employer against the employee that could have caused the employee’s resignation. 

The ERA also found that the employer had not encouraged the employee to resign as the employer had declined to accept the employee’s resignation and had offered her an opportunity to withdraw it. The employee failed to respond, and thus no action of the employer or breach of duty could be said to have brought about her resignation.

Alan Knowsley

Employment Lawyer Wellington

Employer bungles process over employee gender transition…

An employee resigned after she advised her employer that she was transitioning into a woman. The employer was caught by surprise and despite supporting her decision to transition on a ‘personal level’ was concerned about the impact the transition would have on the business. The employer told the employee that her transition would make clients uncomfortable and would create “safety concerns” in the workplace as he believed he could not keep the employee safe from adverse comments. The employer also noted that the employee’s transition was not ‘on brand’ and did not fit with the commercial profile of the business. The employer advised the employee that she could come back to work if she presented as her male persona.

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

The ERA held that the employee’s resignation was reasonably foreseeable as the way in which the employer dealt with the employee’s disclosure of her transition amounted to a fundamental breach of the trust and confidence inherent in the employment relationship. The ERA noted that the fundamental breach was so serious that the employee could not be expected to continue working in such circumstances.

The ERA noted that the employee was not given a fair or reasonable opportunity to respond to the employer’s concerns, and felt as though she had no choice but to resign.

The ERA awarded the employee over $3,200 for lost wages plus $11,000 in compensation for humiliation, loss of dignity and injury to feelings.

Alan Knowsley

Employment Lawyer Wellington

Employer sentenced to home detention…

A father and son have been sentenced by the District Court for failing to pay more than $137,000 in taxes on behalf of their employees.

The father and son were involved in running a business together and after the business ran into difficulties the pair decided to prioritise payment of employee wages over paying $101,500 in income tax.

The father was also involved in a second company which failed to pay almost $36,000 in income tax.

The Court sentenced the father to five months’ home detention and sentenced the son to five months’ community detention. The son was also ordered to complete 125 hours of community work and to repay $30,000.

The father was not ordered to make any repayments as he had sold his home when the business failed and was living off his superannuation payments.

Alan Knowsley

Employment Lawyer Wellington

Employer penalised over $226,000 after failing to pay his employees holiday pay…

An employer has been ordered to pay more than $226,000 after failing to pay his employees holiday pay and for not providing them with written employment agreements. The employer also failed to keep wage and time or holiday records for his employees, and failed to pay his employees time-and-a-half pay for work performed on public holidays. One employee was also paid below the minimum wage.

The Employment Relations Authority ordered the employer to pay over $161,000 in arrears to his employees and $65,000 in penalties, and noted that employers are legally required to keep accurate employment records for up to six years.

Alan Knowsley

Employment Lawyer Wellington

Get your employment agreements right…

An employee has been dismissed for poor performance under a 90-day trial period policy. The employee was often late to work and failed to follow instructions.

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

The ERA found that the employee had been given a blank employment agreement to sign at the beginning of his employment. The agreement did not include a pay rate or his name, and did not include a trial period provision. The employer could therefore not dismiss the employee without following a fair and reasonable process.

The ERA found that no formal performance management process was undertaken, and noted that the employee was completely unaware that his employment was at risk.

The ERA stated that the case acted as a warning to employers to ensure that their employment documentation is up to date before they decide to take on new employees.

The ERA awarded the employee $5,000 for lost wages and unpaid holiday leave plus $3,000 in compensation. The ERA reduced the amount of compensation by 50% as the employee’s poor work performance contributed to the situation.

Alan Knowsley

Employment Lawyer Wellington

Employee unjustifiably dismissed after failing random workplace drug test…

An employee has been dismissed for serious misconduct after failing a random workplace drug test. The employee’s drug test came back positive for cannabis. The employee denied smoking cannabis and believed that the positive result was because of second-hand smoke from a party he attended in the weekend. The employee submitted a second drug test which came back negative.

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 all of the circumstances by not investigating the employee’s explanation for the positive drug test.

The ERA also found that the decision to dismiss the employee was based on the conclusion that the employee was under the influence of drugs at work rather than for the failed drug test. This conclusion was never put to the employee, who had no opportunity to respond to the allegation.

The employee was awarded almost $21,000 in lost wages plus $11,000 in compensation for humiliation, loss of dignity, and injury to feelings.

Alan Knowsley

Employment Lawyer Wellington

Employer penalised almost $25,000 after issuing employee with an ultimatum…

An employee has been dismissed after he txt his employer saying he needed a couple of days off work as he had to look after his children while his partner attended to her dying grandmother. The employer issued the employee with an ultimatum, requiring the employee to return to work or else he would be deemed to have quit.

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

The ERA noted that it is a common misunderstanding among employers that they can treat an employee as having resigned when they fail to do something that they are told to do.

Accordingly, by giving the employee an ultimatum, which the employer knew the employee could not comply with, the employer terminated the employment relationship.

The ERA noted that the employer took no steps to withdraw the ultimatum or to make arrangements for the employee to return to work.

The ERA ordered the employer to pay the employee almost $14,000 for lost wages and holiday pay plus nearly $700 for wage arrears. The employee was also awarded $10,000 in compensation for humiliation, loss of dignity and injury to feelings.

Alan Knowsley

Employment Lawyer Wellington

Employer follows correct redundancy process throughout company restructure…

An employee has taken a personal grievance claim to the Employment Relations Authority after being made redundant.

The ERA held that the employee had not been unjustifiably dismissed as the redundancy was genuine and the employer’s consultation requirements had been met.

The ERA found that the employer had undertaken a comprehensive investigation into its concerns about the need to reduce costs, and noted that the employer’s decision to restructure was one that a fair and reasonable employer could make in all of the circumstances.

The employer had provided sufficient information regarding the proposed restructure to the employee, and had taken into account the employee’s feedback before the employer made the decision to terminate the employee’s role.

The ERA noted that the employer had considered redeployment opportunities but had found that there were no positions available for the employee.

Alan Knowsley

Employment Lawyer Wellington

ERA rejects PG claim after employee resigns after disagreement with colleague…

An employee has resigned after having a verbal altercation with one of her colleagues. The two workers had a long history of disagreements and were unable to see eye to eye on many work related issues.

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

The ERA held that the employer had acted as a fair and reasonable employer could in all of the circumstances by promptly meeting with the two employees to try and improve their working relationship.

The ERA noted that while the employee had complaints about her colleague, he equally had complaints about her.

The employer provisionally agreed that the two staff members could no longer work together and offered the employee the option of moving to another office. The employee had immediately rejected this offer.

The ERA held that the employer’s conduct did not have the dominant purpose of effecting a resignation. Instead, the employer had done everything it could to retain the employee’s services.

Alan Knowsley

Employment Lawyer Wellington

Employee awarded $4,000 after being unjustifiably disadvantaged in her employment…

An employee has resigned after her employer failed to provide her with an employment agreement, failed to pay her the minimum wage, and failed to pay her sick leave entitlement. The employee was also not paid during the annual closedown period and was unable to take annual leave.

The Employment Relations Authority upheld the employee’s personal grievance claim for unjustified disadvantage. However, the ERA held that despite the employee suffering these disadvantages in her employment, the employee was not constructively dismissed as the employer had been willing to discuss and resolve the employee’s concerns.

The ERA ordered the employer to pay the employee $4,000 in compensation for humiliation, loss of dignity, and injury to feelings.

Alan Knowsley

Employment Lawyer Wellington

ERA rejects employee’s PG…

An employee has resigned after struggling to complete her work within her designated hours of employment. The employee asked her employer to employ another person to help assist her in her role, but her request was refused. The employer noted that their previous employees had experienced no difficulties fulfilling the position’s requirements.

The Employment Relations Authority dismissed the employee’s personal grievance claim for constructive dismissal.

The ERA found that the employer had not breached any duties which were sufficiently serious so as to leave the employee with no other option than to resign.

The ERA held that the employer had not mislead the employee as to the requirements of the role, and had undertaken some of the employee’s duties to alleviate her workload. The employer had also begun implementing regular morning and weekly meetings at which daily issues could be raised.

Accordingly, the ERA held that the employee had voluntarily resigned and that there were no grounds for a personal grievance.

Alan Knowsley

Employment Lawyer Wellington

Employee awarded over $14,000 for unjustified dismissal after flight is delayed…

An employee has been dismissed after being delayed on his return back to New Zealand after visiting family overseas. The employee was not back in time to complete his rostered shift and was subsequently dismissed for abandoning his employment.

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

The ERA held that the employee had not abandoned his employment as the employer knew where the employee was and that he intended on returning.

The ERA found that the real reason behind the employer’s decision to dismiss the employee was performance concerns. These concerns were not put to the employee, who had no opportunity to respond to them before the decision to terminate was made.

The ERA held that the dismissal was ultimately predetermined as the employer had had enough of the employee and his performance.

The employee was awarded over $9,700 for lost wages plus $5,000 in compensation for humiliation, loss of dignity and injury to feelings.

Alan Knowsley

Employment Lawyer Wellington

Employer penalised over $136,000 after employee dies on worksite…

An employee has died in a workplace accident after a log fell out of an overloaded dump truck.

The District Court convicted the employer under the Health and Safety in Employment Act for failing to ensure the safety of the victim.

WorkSafe New Zealand found that the employer failed to have an alternative method of carrying the logs and also failed to ensure that the logs remained below the level of the sides of the truck.

The employer could have extended the sides of the log compartment and put in place a safety procedure which recorded in the company hazard register the risk of logs falling out of the truck.

The employer was fined almost $40,000, and was ordered to pay over $97,000 in reparations to the employee’s widow for emotion harm. 

Since the accident, the employer has implemented a series of operational changes in the workplace to improve safety.

Alan Knowsley

Employment Lawyer Wellington

Employee’s PG upheld after working for over a year without pay…

An employee has resigned after he worked for 69 weeks without getting paid. The employee was forced to live on a credit facility and on money loaned from his family in India. The employee was also told by his employer that he was required to pay Inland Revenue personally.

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

The ERA held that the employer’s failure to pay the employee wages was a fundamental breach of the employment agreement.

The ERA ordered the employer to pay the employee over $40,000 in lost wages and over $3,000 in holiday pay. The employer was also ordered to repay the employee more than $4,000 for the money he paid to Inland Revenue plus $5,000 in compensation for humiliation, distress and injury to feelings.

Alan Knowsley

Employment Lawyer Wellington

Employers penalised over $87,000 after paying employee $4 an hour…

Two companies have been penalised over $87,000 after paying a 19 year old migrant worker $4 an hour. The employee worked for 14 months before contacting the Ministry of Business Innovation and Employment (MBIE) who immediately referred the matter to a Labour Inspector.

The Employment Relations Authority found that the employers failed to pay the employee the minimum wage, holiday pay, and failed to provide him with a written employment agreement, and failed to keep accurate time and wage records.

The ERA ordered the employers to pay the employee over $45,300 in wage and holiday pay arrears, and $42,000 in penalties. The employee personally received $22,000 of the penalties awarded.

The ERA noted that the award acts as a deterrent to other employers who may be tempted to employ staff under the table.

Alan Knowsley

Employment Lawyer Wellington

Employer penalised over $9,200 for unlawfully docking employee’s pay…

An employee was forced to resign after her employer continually deducted 30 minutes from her daily wages in order to cover breaks which the employee was not allowed to take.

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

The ERA noted that the employee had notified her employer of the discrepancies and had requested to be properly paid. The employer failed to remedy the situation, despite having a statutory obligation to respond to, and address the employee’s concerns.

The ERA held that the employer’s actions gave the employee no option but to resign.

The ERA ordered the employer to pay the employee over $3,200 for lost wages plus $4,000 in compensation for humiliation, loss of dignity and injury to feelings. The employee was also awarded more than $2,000 for wages that were improperly deducted.

Alan Knowsley

Employment Lawyer Wellington

Employee dismissed by text receives $9,000 in compensation…

In a recent Employment Relations Authority decision, a project manager who was sacked by text with little explanation from his employer was successful in his personal grievance and awarded lost wages for the six month period after his dismissal. He earned significantly less than he would have in his former employment and was awarded the difference.

The information for the basis of the dismissal was not made available to the employee for comment prior to the dismissal itself, the ERA held that this showed the employer’s lack of good faith toward the employee, it also showed their failure to follow a fair and reasonable process.

The employer expressed unhappiness towards the employee’s work performance during the ERA enquiry. However, because these issues were not put to the employee during his employment they were not considered to have constituted a justified dismissal.

The ERA awarded $9,000 compensation for hurt and humiliation, loss of dignity and injury to feelings as the employee said he was ashamed to admit he had been dismissed and felt he had lost significant status in the community after he had lost his job.

Alan Knowsley

Employment Lawyer Wellington

Employee dismissed after helping employer gain NZ residency…

An employee was made redundant within hours of her employer gaining New Zealand residency. The employer bolstered his application for permanent residency by employing a New Zealand citizen.

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 all of the circumstances by not providing the employee with an opportunity to participate in the process which led to her dismissal.

The employee was not provided with any information about the employer’s financial situation, and was unable to comment on the situation.

The ERA ordered the employer to pay the employee $5,400 for lost wages plus $10,000 in compensation for humiliation, loss of dignity, and injury to feelings.

Alan Knowsley

Employment Lawyer Wellington

Employee unable to recover over $8,800 in unpaid wages after company is liquidated…

An employee has been dismissed a day before the company he was working for went into liquidation. The employee was told that the company had been taken over by another company, and that the take-over company would offer him a new employment agreement. The employee was then not offered the position.

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

The ERA found that the employee was not consulted with before his dismissal and that he was not given a clear reason for the termination of his employment.

The ERA found that the employee was owed wage arrears totalling over $8,800, but held that the employee was unlikely to receive the amount out of the proceeds of the liquidation.

The ERA held that the employee was not entitled to seek payment of the sum from the take-over company as it was not his employer before or at the time of his dismissal.

The ERA noted that the take-over company had no obligation to offer the employee an employment agreement given that the employee had been dismissed from the old company before it was liquidated.

This case demonstrates the lack of protection for employees who are working in businesses that are transferred between owners.

Alan Knowsley

Employment Lawyer Wellington

Employee has $1,000 unlawfully deducted from her pay…

An employee had $1,000 deducted from her pay after money was found missing from the workplace float. The employee signed an agreement to pay back the $1,000 out of her wages and was then dismissed as her employer considered that she could no longer be trusted in the workplace.

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

The ERA found that the deduction of pay was unauthorised as there was no contractual foundation allowing for the deduction of wages. The ERA also noted that the agreement signed by the employee was made under duress.

The ERA held that there was no evidence that the employee had taken the $1,000, and found the dismissal to be unjustified as the employer had failed to put his concerns to the employee and had not allowed her an opportunity to respond to those concerns.

The employee was awarded $3,200 for lost and deducted wages plus $6,000 in compensation for hurt and humiliation.

Alan Knowsley

Employment Lawyer Wellington

Employer penalised $7,000 after breaching employment agreement…

An employee was dismissed under a 90 day trial clause, which required the employer to notify the employee as early as practicable if the trial period was not going well.

The Employment Relations Authority upheld the employee’s personal grievance claim for unjustified disadvantage as the employee was given no advice, verbally or in writing, before her dismissal advising her that things were not going well.

The ERA held that this failure disadvantaged the employee by denying her the opportunity to remedy any shortcomings in her work. The employer’s failure to communicate openly with the employee was a breach of good faith and was not constructive in maintaining a productive employment relationship.

The ERA ordered the employer to pay the employee a $7,000 penalty for breaching the employee’s employment agreement. No compensation was awarded as any humiliation, injury to feelings or loss of dignity suffered by the employee related to her dismissal rather than the employer’s breach of contract.

Alan Knowsley

Employment Lawyer Wellington

21 year old employee dismissed for being too young…

A twenty-one year old employee has been dismissed from his employment on grounds that he was too young, was under-performing and had asperger’s syndrome.

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

The ERA found that the employer failed to act as a fair and reasonable employer could in all of the circumstances by dismissing the employee for poor performance without first undertaking a formal disciplinary process. In failing to do so, the employee was given no opportunity to provide an explanation or to remedy his behaviour.

The ERA also noted that discrimination on the basis of age and disability are prohibited grounds for dismissal.

The ERA found that age discrimination was a factor in the decision to dismiss the employee who responded to a job advertisement which was advertising for a worker “50 years or below”. The employee was also advised in his interview that the employer was looking for someone in their 40s.

The employer also dismissed the employee after the employee disclosed that he suffered from asperger’s syndrome, and that he was receiving a benefit for the disability.

The ERA awarded the employee three months lost wages plus $5,000 compensation for hurt and humiliation.

Alan Knowsley

Employment Lawyer Wellington

Employer penalised over $12,000 after issuing employee with an ultimatum…

An employee resigned after being forced to sign a new employment agreement which decreased the employee’s hours and allowed the employer to temporarily stop providing work for the employee.

The employee’s personal grievance claim for constructive dismissal was upheld by the Employment Relations Authority.

The employer delivered an ultimatum to the employee that unless he accepted the new agreement, the employer would start paying the employee overtime only if he worked over 50 hours a week. The employee had previously been paid overtime if he worked more than 40 hours a week.

The ERA held that the ultimatum, and the employer’s insistence on applying it to the previous fortnight, breached the employer’s duty of good faith.

The ERA found that the employer’s breach was so significant that it was reasonably foreseeable that the employee would resign.

The ERA awarded the employee over $6,700 for lost wages plus $4,000 in compensation for humiliation, loss of dignity and injury to feelings. The employer was also ordered to pay a $2,000 penalty.

Alan Knowsley

Employment Lawyer Wellington

Employee unfairly warned after handing mental health patient a knife…

The Employment Relations Authority has found that an employee who handed a mental health patient a knife and used racial slurs has been unfairly issued with a serious misconduct warning.

The employee was issued with the written warning after a formal grievance was lodged by the patient. The employer also notified the Nursing Council of the incidents.

The ERA held that the employer’s initial response to the incidents, which required the employee to write an apology to the patient and to have additional training, was all that was necessary to respond to the complaint.

The ERA held that the employee’s written warning should be removed from his record and the complaint to the Council rescinded.

Alan Knowsley

Employment Lawyer Wellington

Employee unjustifiably dismissed for helping colleagues complete work…

An employee has been dismissed after helping his colleague’s complete work. The employer claimed that the employee was assisting his colleagues for personal gain when he was supposed to be doing his own job.

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

The employee was paid an hourly rate while other staff members were paid on a piece basis. Accordingly, the employer was paying for the work to be done twice, once by the worker and then again by the employee at his hourly rate.

The ERA held that there was no evidence that the employee was helping his colleagues for profit, or that there was any conspiracy between the workers.

The ERA noted that the employee could have been helping in a spirit of collegiality or because he had been told to do so by his supervisor.

The ERA ordered the employer to pay the employer over $2,500 for lost wages plus $8,000 in compensation for humiliation, loss of dignity and injury to feelings.

Alan Knowsley

Employment Lawyer Wellington

$44,000 damages for unjustified suspension and dismissal...

The Employment Relations Authority (ERA) has upheld a personal grievance claim for unjustified disadvantage and unjustified dismissal after a long term employee received a final warning and then was dismissed for falsifying company records.

The ERA held that the company failed to act as a reasonable employer at every step of the way.  The events that resulted in the final warning were not properly investigated and the final decision maker had not participated in the process so had no basis to reach the decision they did.

The employee was suspended without being told of the allegations against them so they could not respond prior to the suspension. The suspension was therefore unjustified.

The employee was then dismissed following an investigation into allegations of falsifying company training records.  The ERA held that there was no evidence to support the finding that the employee had falsified the records and so the decision to dismiss was unjustified.

The ERA awarded $2,500 for the unjustified warning and suspension, $15,000 for the unjustified dismissal and lost wages of $26,500 (over  a six month period).

Allegations must be put to employees and they must be given an opportunity to comment before a suspension, the decision maker must fully participate in the investigation process and findings must be supported by the facts.  Failing to follow these requirements cost this employer over $44,000 in damages plus their own costs and time in defending the claims.

Alan Knowsley

Employment Lawyer Wellington

Faulty dismissal process costs employer over $10,000…

An employee was dismissed over performance concerns but 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 all of the circumstances. The employer did not raise any concerns about the employee’s performance until after he had already tried to obtain her resignation and after he had already prepared her final pay. Therefore the employer did not give the employee a proper opportunity to respond to his concerns, and did not give her explanations fair consideration.

The ERA awarded the employee $7,400 for lost wages plus $3,000 compensation for humiliation, loss of dignity and injury to feelings.

An expensive lesson for the employer on getting the process right before moving to the dismissal phase.

Alan Knowsley

Employment Lawyer Wellington

Employment Court rejects employee’s personal grievance claim in light of settlement agreement…

A secondary teacher has resigned after refusing to participate in what he saw as “religious rituals and functions of the school” such as powhiri (welcome ceremony), karakia (prayers) and songs at assemblies. The Board gave the teacher the option of resignation or dismissal and, as an incentive to resigning, the employee was offered $6,500. The employee unwillingly signed the settlement agreement.

The Employment Court rejected the employee’s personal grievance claim for unjustified constructive dismissal.

The Court held that the employee had resigned and that the settlement agreement should not be set aside.

The Court noted that the employee was advised to take legal advice before signing the agreement and that despite having an unreasonably short time to consider the agreement, the employee suffered no prejudice as he took longer than the time stipulated to agree to the settlement.

The Court held that there was no undue influence or illegitimate pressure placed on the employee to sign the settlement agreement, and that the agreement was fair and reasonable in the circumstances.

The Court also commented that the teacher was probably entitled to object to participating in those parts of the school’s ceremonial events which constituted or contained religious practices. Consequently, the school had to accommodate those objections as long as it did not unreasonably disrupt their activities.

Alan Knowsley

Employment Lawyer Wellington

Worker ordered to pay $89,000 in costs for failed PG…

An employee has been dismissed after failing to perform her tasks, acting in a rude manner, and for shouting at her colleagues.

The employee took a personal grievance case to the Employment Relations Authority claiming that she had been unjustifiably dismissed by her employer.

The ERA held that there was no merit to her claims, and found that the employer’s decision to dismiss the employee was substantially and procedurally justified. The employee had refused to attend disciplinary meetings with management and therefore missed her opportunity to explain her conduct.

The employee appealed the ERA’s decision to the Employment Court.

The Court held that the employer acted as a fair and reasonable employer could in all of the circumstances by initiating disciplinary proceedings against the employee, and by deciding to terminate the employee.

The Court ordered the employee to pay $88,750 in costs and over $790 for disbursements.

The employee had conducted her case inefficiently, and had added significantly to the costs of the employer.

This case serves as a timely reminder that employees should not unjustifiably file personal grievance claims without sufficient grounds as you may face exceptionally high costs as in this case, if you are found to be time-wasting by the Court.

Alan Knowsley

Employment Lawyer Wellington

Employee justifiably dismissed for failing to follow a reasonable instruction…

An employee has been dismissed after refusing to wear a piece of personal protection equipment (PPE). The employee was instructed to wear a hard hat but removed it when it became too hot. The employee was instructed to put the hard hat back on by his supervisor but refused, despite it being a health and safety requirement.

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

The ERA found that the employer’s decision to dismiss the employee was fair and reasonable in the circumstances. The employer had carried out a sufficient investigation and had genuinely considered the employee’s explanation for his actions before deciding to dismiss the employee.

The ERA noted that while there were some issues with the hard hats, the employer had been trying to solve the situation and was actively engaging with the Union.

Alan Knowsley

Employment Lawyer Wellington

Employee awarded over $12,500 after employer deprives him of work…

An employee informally applied for annual leave despite his employment agreement requiring leave applications to be submitted in writing. The employee’s request for leave was denied, and the employee was warned that if he did not turn up for work that there would be no work for him on his return. After taking the day of unauthorised leave, the employee was forced to resign after his employer refused to give him work.

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

The ERA noted that the employee’s application for leave was acceptable as the employee had previously applied for annual leave on an informal basis without any challenge from the employer.

Employers are entitled to decline a leave request however, the ERA held that the employer failed to act as a fair and reasonable employer could in all of the circumstances by depriving the employee of work.

The ERA found that the employee was constructively dismissed as the employer’s actions had the effect of severing the employment relationship which was reasonably foreseeable in the circumstances.

The ERA awarded the employee over $5,500 for lost wages plus $7,000 in compensation for humiliation, loss of dignity, and injury to feelings.

In these circumstances, the employer should have undertaken a proper disciplinary process.

Alan Knowsley

Employment Lawyer Wellington