Remedies reduced by 50% due to employee's conduct...

The Employment Relations Authority has upheld a personal grievance for unjustified dismissal but then reduced the remedies by 50% because of the conduct of the employee.

The employee had been dismissed without a proper process as no opportunity was given for the employee to respond to the allegations made by the employer.

The Authority found that lost wages of three months ($10,500) plus compensation of $10,000 would have been appropriate.  However, the employee contributed to the situation by repeatedly arriving late for work, failing to follow reasonable instructions and poor workmanship.  The remedies were halved as a result.

Alan Knowsley

Employment Lawyer Wellington

Poor process costs employer over $26,000...

An employee has succeeded in their personal grievance for unjustified dismissal once again because the employer failed to follow proper processes when dealing with issues of poor performance.

The employee was under a 90 day trial provision.  This means they could have been dismissed without any reason being necessary if that had been done during the 90 days.  However, the employer waited until after the 90 days to dismiss.  It also failed to raise with the employee its concerns over her performance so she had no opportunity to respond before she was dismissed.

The Employment Relations Authority ordered payment of $12,000 lost wages, $13,000 compensation for hurt and humiliation plus costs.

Alan Knowsley

Employment Lawyer Wellington

Misleading an employee leads to unjustified dismissal...

The Employment Relations Authority has upheld a personal grievance for unjustified dismissal after finding several failings in the employer’s process for dealing with a redundancy.

The employer advised the employee that her employment would terminate as the business had been sold to a new company and all employment agreements were ending.  This was not correct as no new company was buying the business.  The transaction was only a sale of shares in the existing business so the employer did not change.

The employer also failed to consult properly with the employee over what new position would be offered and unilaterally reduced her hours, pay and status.

The ERA awarded $2,200 lost wages plus $12,000 compensation for the employer’s breaches of good faith in the process.

Alan Knowsley

Employment Lawyer Wellington

Employer penalised $40,000 for inaccurate wage records…

The Employment Relations Authority has penalised an employer $40,000 for substantial under recording of working hours.  The employer had 16 workers and under recorded the hours for each on a daily basis.  The 16 employees were short-paid $87,000 as a result.

The $40,000 penalty was imposed because of the number of breaches, size of the harm done and as a deterrent to the employer and other employers from similar actions.

Alan Knowsley

Employment Lawyer Wellington

$2,000 penalty for failing to provide wages records…

The Employment Relations Authority has upheld a personal grievance claim and penalised an employer who failed to immediately provide copies of an employee’s wage and time records.

The employee was working out their notice period and felt they had been short paid so requested copies of the records.  The employer failed to provide these details.

The penalty for the three offences was up to $60,000 but this was reduced to $2,000 due to the circumstances of the company and how the breaches had occurred.  Just because the employment was about to end was no excuse for not complying with the law.

Alan Knowsley

Employment Lawyer Wellington

Costs awarded against unsuccessful employee in ERA decision…

An employee’s personal grievance claim for unjustified dismissal has been rejected by the Employment Relations Authority.

The employee was dismissed by the employer for serious misconduct for breaching his delegated authority. The employee’s action breached the employer’s policies on gifting and sensitive expenditure, and had the potential to become a conflict of interest for the employee when he undertook further work for the client.

The ERA found that the employer had acted as a fair and reasonable employer could in all of the circumstances.

The ERA was satisfied that the employee had received full information about the allegations and had been provided with an opportunity for representation and a chance to respond to the allegations. Adjournments were taken throughout the disciplinary meetings to allow the employer to consider the employee’s explanations and to conduct further enquiries. The employee was aware of the seriousness of the investigation and that it could lead to his dismissal. The employee was advised by the employer of the preliminary findings and was advised of the proposal to terminate his employment. The employee was given a chance to consider the proposal and an opportunity to comment on it.

The ERA held that the employee’s dismissal was justified and that the process followed by the employer contained no elements of unfairness.

The employee was ordered to pay $4,500 towards the employer’s costs.

It is important that you seek legal advice prior to making an application to the ERA so that you can have an objective third party weigh up your chances of success. If you are unsuccessful you may potentially be liable to pay or contribute to the other party’s legal fees.

Alan Knowsley

Employment Lawyer Wellington

Employer penalised over $12,500 after failing to disclose material information to employee during disciplinary investigation…

An employee has been summarily dismissed after failing to immediately report a health and safety incident. The employee cleaned up the accident but did not report the incident until before his shift the next day.

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

During the disciplinary meeting the employer focussed on the employee’s failure to report the incident during the shift or at the end of his shift. No consideration was given to the employee’s assertion that he had reported the incident as soon as he arrived at work the next day. The employer did not indicate that had the incident been reported before the start of his next shift, the employee would not have been dismissed.

The ERA held that this information would have likely influenced the employee’s answers and the focus at the meeting. The ERA noted that this failure to disclose material information undermined the fairness of the process which was followed.

The ERA awarded 3 months lost wages plus $12,500 compensation to the employee for humiliation, loss of dignity and injury to feelings.

Alan Knowsley

Employment Lawyer Wellington

Poor process trips up employer again...

The Employment Relations Authority has found that an employer would have been justified in dismissing an employee for serious misconduct if it had got its process right.

The employer had a policy of no alcohol on the premises which the employee breached on two occasions.  When the employer found out it suspended the employee and commenced a disciplinary investigation.  However, it failed to give the employee an opportunity to discuss the suspension before it was imposed.

In addition the employee failed to turn up to the disciplinary meeting and instead sent in a medical certificate claiming sickness.  The employer proceeded to make a preliminary finding of serious misconduct when it should have held off doing so until the employee had another opportunity to respond to the allegations.

The ERA refused to award any lost wages as the employee failed to give evidence of attempts to find another job.  The ERA also said the damages awarded must be caused by the breach by the employer.  As the employer would have been justified in dismissing, the damages could only arise from the poor process, not the dismissal itself.

The appropriate compensation was said to only be $2,000 and this was reduced to $1,000 for the contributory conduct of the employee.

Alan Knowsley

Employment Lawyer Wellington