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

Suppression orders don’t stop employer investigating…

The employee was convicted of domestic violence offences and an order was made prohibiting publication of his name and details.

A representative of his employer was in Court on the day and advised the employer of the convictions.  The employer investigated and dismissed the employee as his job included keeping people safe from violence.

The employee challenged the employer’s investigation as a breach of the suppression order but both the Employment Court and now Court of Appeal held that the employer had a legitimate interest in being told of the conviction, so being told about it was not a breach of the suppression order.  The Court of Appeal also said that Judges should take more time when drafting suppression orders to make it clear an employer can be advised of the events so it can investigate.  It is the employer’s role to decide if the conviction affects the employment and it is not for the Court to prevent that process by a suppression order.

Alan Knowsley

Employment Lawyer Wellington

Unjustified suspension and dismissal lead to penalty

The Employment Relations Authority has upheld a personal grievance claim for unjustified disadvantage and unjustified dismissal and awarded lost wages, compensation and a penalty against the employer.

The employee was required to work Saturdays as part of his employment agreement but he decided he would not work them and sent an email refusing to do any more Saturday work.  The employer commenced a disciplinary process in relation to the refusal to work and suspended the employee pending that investigation.

The employee responded by sending a series of emails both internally and externally that were intemperate and inappropriate.  The employer added those emails to its list of serious misconduct allegations but the letter raising those was not seen by the employee until after the first disciplinary meeting.  A further meeting was held the next day regarding the new accusations.  The ERA held that the decision to suspend was predetermined as it was made before seeking the employee’s comment on the suspension.

The employer was held to have failed to ask the employee about the emails sent internally and externally so he was not able to give an explanation.  The reasons for his dismissal claimed that he accepted he was wrong to send the emails but in fact the notes of the meetings did not record any such admission and the allegations had not even been put to him at the time he as supposedly confessing.

The ERA also held that putting the new serious misconduct allegations and requiring a further meeting at 9 am the next day did not give the employee time to seek independent advice on them.

The new (email) concerns overtook the refusal to work Saturday’s allegation but the employee was never advised of this or given a proper opportunity to respond.

He was also not given any opportunity to comment on whether dismissal was reasonable and not advised of his right to bring a representative to the meetings.

The employer was penalised $2,000 for its breaches of good faith for the way it conducted the disciplinary process and ordered to pay the employee lost wages for the time he was suspended and from when he was dismissed until he found a new job.  Compensation of $6,800 was also ordered for his hurt and humiliation.  There was a 20% reduction in lost wages after his dismissal due to his conduct regarding the emails sent to external parties.

Alan Knowsley

Employment Lawyer Wellington