Employee forced to resign after being ‘pestered’ by employer outside of business hours…

An employee working as a retail manager resigned after feeling sexually harassed by her employer. The employer would visit the store on a weekly or fortnightly basis and would greet the employee with a hug and an occasional kiss. The employer also regularly arranged meetings outside of work and would continually phone and text the employee.

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

The ERA held that the employer’s actions did not meet the threshold for sexual harassment as the hugging occurred in the store with other staff present or else in a public place. The ERA did not accept the employee’s evidence of any accompanying kiss.

The ERA held that the employee had been disadvantaged in her employment by the employer’s arrangements to meet her away from the workplace and outside of business hours to discuss work matters. Other contact with the employee was also held to be an intrusion into her private time as it took place on days when she was away from work.

The employer also failed to act in good faith towards the employee by meeting with the employee off-site to discuss customer complaints without first informing her of the reason for their meeting. The employer did not provide the employee with all of the relevant information relating to the complaints, and did not seek her response.

Accordingly, these breaches of good faith caused the employee to resign.

The ERA ordered the employer to pay the employee a $6,000 penalty for breaching her employment agreement plus over $7,000 for lost wages. The employer was also ordered to contribute $1,000 towards the employee’s medical expenses for anxiety, and to pay the employee $6,000 compensation for humiliation, loss of dignity and injury to feelings.

Alan Knowsley

Employment Lawyer Wellington

Employee justifiably dismissed after stealing company property…

An employee working as a night shift supervisor has been dismissed after he was accused of stealing two silver trays from the warehouse premises.

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

The ERA held that the employer did not have to prove that the employee took the trays but simply had to establish on reasonable grounds that it is was more probable than not that the employee took the trays.

The ERA held that the employer acted as a fair and reasonable employer could in all of the circumstances by undertaking an investigation and raising his concerns with the employee before dismissing him.

The employer gave the employee a reasonable opportunity to respond to their concerns and genuinely considered the employee’s explanation as to why the trays went missing. The employer checked the employee’s explanations and gave the employee access to their CCTV footage.

The ERA held that from his inquiries the employer could reasonably have concluded that the employee took the trays and that in doing so, the employee had breached his trust and confidence.

Alan Knowsley

Employment Lawyer Wellington

ERA rejects employee’s personal grievance claim after employer refuses to advance sick leave…

An employee working as a receptionist resigned after her employer refused to advance her sick leave entitlement after her husband was diagnosed with terminal cancer.

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

The ERA held that the employer’s conduct did not have the deliberate and dominant purpose of coercing the employee to resign. 

The ERA noted that there was no provision in the parties’ employment agreement that required the employer to advance sick leave. Instead, the only way the employee could take sick leave in advance was with the agreement of her employer.

The employer did not agree to advance her sick leave because the employee had annual leave available. The ERA noted that it is not unusual for employers to require annual leave to be exhausted before they consider any advancement of sick leave. This is especially so when employees are using their sick leave to care for others, as they risk having no sick leave available for themselves if they fall ill.

It is important to remember that while you may feel that your employer is being uncompassionate or unsympathetic, their decisions may still be lawful and one which a fair and reasonable employer could make in all of the circumstances.

Alan Knowsley

Employment Lawyer Wellington

Employee dismissed after refusing to accept demotion…

An employee working as a supervisor was dismissed after she refused to sign a new employment agreement which demoted her to a lesser position, of lower pay, and which had fewer hours, and was for a fixed term period.

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 terminating the employee for refusing to accept the variation to her employment agreement, and for dismissing her in reliance on trial period provisions that had expired.

The ERA also held that the employee had suffered unjustified disadvantage in her employment as the employer had not fairly dealt with its concerns about the employee’s performance before offering her the downgraded position. The employee was not provided with full information about the basis for their concerns and therefore could not properly respond to them. The ERA also found that the employer had not given the employee an adequate opportunity to improve.

The ERA ordered the employer to pay the employee over $4,600 for lost wages and over $500 in wage arrears plus $8,500 in compensation for humiliation, loss of dignity and injury to feelings.

Alan Knowsley

Employment Lawyer Wellington

Employee unjustifiably dismissed under faulty trial period clause…

An employee working as a mechanic was dismissed under a 90 day trial period clause after he returned to work after 3 days of unexplained absence. The employee had tried to contact the employer on multiple occasions during this time to notify him that he was ill. On his return to work the employee provided the employer with a medical certificate.

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

The ERA held that the trial period clause in the employee’s individual employment agreement failed to meet the requirements for a valid trial period. The employee had started working before signing his employment agreement and was therefore not considered a new employee.

The ERA held that a fair and reasonable employer could not have justifiably dismissed the employee in these circumstances without properly investigating his concerns about the employee’s absence from work and the employee’s performance. The employer also failed to put his concerns to the employee, and failed to provide him with an opportunity to improve.

The ERA ordered the employer to pay the employee $2,000 for lost wages and over $3,100 for wage arrears and holiday pay plus $6,000 in compensation for humiliation, loss of dignity and injury to feelings. The ERA deducted over $260 from the employee’s award for debts due to the employer.

Alan Knowsley

Employment Lawyer Wellington

Employers must follow the dismissal clauses in their employment agreements…

An employee working as a chief was suspended while on sick leave after performance concerns, and allegations that the employee was recruiting staff members to work in a new café that she was setting up. The employee was later dismissed for her poor performance and attitude after her employer accepted that there was no café and that the story had been made up.

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

The ERA held that the employee suffered unjustified disadvantage in her employment as the employer failed to follow the suspension processes set out in the employee’s employment agreement. The employee was not consulted about the proposed suspension and had no opportunity to comment on the proposal.

The ERA held that a fair and reasonable employer could not in the circumstances have justifiably dismissed the employee as the employer did not follow the clear dismissal clauses set out in the employee’s employment agreement. The employer’s concerns regarding the employee’s performance were not explained to the employee at the disciplinary meeting, and she was thus unaware of the reasons for her dismissal.

The ERA ordered the employer to pay the employee $9,360 for lost wages plus $19,500 compensation for humiliation, loss of dignity, and injury to feelings.

Alan Knowsley

Employment Lawyer Wellington

Is weight a valid reason for dismissal?

Obesity rates are rising in New Zealand. For many people this raises various health issues. What people may not realise is that weight is increasingly forming the basis of many legal disputes within the employment arena.

In a recent Australian case, obesity was found to be a valid reason for dismissal on the basis that the employee was incapable of safely and competently performing his role. The employee was a forklift driver and his weight exceeded the maximum allowed on the forklift. This created a workplace safety issue. Additionally, the employee was found to be suffering from obesity related health concerns. The employee had severe obstructive sleep apnoea, which an occupational therapist advised could affect his ability to perform his job safely.

But what would the outcome be in New Zealand?

In New Zealand, employers are entitled to require their employees to maintain a general level of health and fitness in order for them to stay suitable for the role that they are performing. 

However, obesity is not grounds for instant dismissal. Employers must still go through an investigation process before deciding whether dismissal is the appropriate outcome.

Alan Knowsley

Employment Lawyer Wellington

Corrections officer justifiably dismissed after having warrant issued for her arrest…

An employee working as a corrections officer has been dismissed for serious misconduct after she hit and broke her stepfather’s car windscreen. The employee failed to disclose her criminal charge for wilful damage to her employer until after she had made two Court appearances. The employee then had a warrant issued for her arrest.

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

The ERA held that the dismissal was substantially justified in the circumstances as the Department of Corrections requires a high standard of professional and personal behaviour from its employees, and requires them to comply with the law at all times.

The ERA found that the employer followed a fair and proper dismissal process. The employee had multiple chances to provide feedback on the employer’s investigation and had the support of her husband and lawyer throughout the disciplinary process. The employer genuinely considered the employee’s explanation for her conduct, and considered a range of alternatives to dismissal, but ultimately decided that they no longer had trust and confidence in the employee.

Alan Knowsley

Employment Lawyer Wellington

Employee unjustifiably disadvantaged by unilateral changes to her employment…

An employee working on a farm resigned after her employer unilaterally changed her place of work, her duties, her hours and her hourly rate. The employer had concerns about the employee’s performance but did not raise them with the employee. The employer instead employed a new worker to carry out her role.

The Employment Relations Authority upheld the employee’s personal grievance claim for unjustified disadvantage and unjustified constructive 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 discuss his performance concerns with the employee. Instead, the employer unilaterally rearranged the employee’s hours and duties so that he could keep a closer eye on her. The employer also unilaterally changed her place of work in the knowledge that the employee would struggle to arrange her family life around her new role.

The employer did not give the employee a reasonable opportunity to respond to their concerns or to propose an alternative to the unilateral changes. The employee’s feedback was thus not taken into account before the employer made his decision.

The employer also breached his duty of good faith to communicate openly and honestly with the employee by not discussing the employment of the new worker to take over the employee’s role.

The employer’s breaches destroyed the employee’s trust and confidence in the employer, and meant that the employee’s resignation was reasonably foreseeable.

The ERA ordered the employer to pay the employee over $5,300 for lost wages and over $160 in KiwiSaver contribution plus $10,000 compensation for humiliation, loss of dignity and injury to feelings.

Alan Knowsley

Employment Lawyer Wellington