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