Facebook posts breach confidentiality of settlement…

The parties signed a confidential settlement of an employment relationship dispute.  The settlement included a non-disparagement clause as well.

One of the parties then posted disparaging Facebook posts and sent disparaging emails about the other party.

The Employment Relations Authority has upheld a claim for penalties to be imposed for the breaches.  The ERA held that the breaches were intentional and damaging to the reputation of the two parties and occurred on multiple occasions.  The maximum penalty available was $100,000 but only a $6,000 penalty was imposed.  Of that $4,000 was ordered to be paid to the injured parties and $2,000 to the Crown.

The offending party claimed that the Facebook posts only went to his family and friends but even that was a breach of the confidentiality of the settlement.

Alan Knowsley

Employment Lawyer Wellington

Employer penalised $78,000 for failing to notify WorkSafe of workplace injuries…

An employer has been penalised after failing to report two separate workplace incidents.

Two employees sustained severe injuries to their hands while using a piece of machinery. As a result of the injuries, both employees required surgery and significant time off work.

WorkSafe became aware of the incidents after one of the injured employees made a complaint.

WorkSafe found that the employer had failed to implement systems to identify and manage workplace risks, and had failed to formally train the employees on how to safely operate the machine.

WorkSafe’s Inspector also found that less than 4 months earlier, the employer had been issued with an improvement notice which required the company to implement a hazard management and control system which had not been done.

The District Court penalised the employer $78,000 for breaching health and safety law.

Alan Knowsley

Employment Lawyer Wellington

Employers penalised over $12,000 after failing to follow proper termination process…

An employee has been successful in the Employment Relations Authority after raising a personal grievance claim for unjustified dismissal.

The employee was dismissed from his employment at a meeting with his employers after he had a dispute with a co-worker.

The employee was told that things were not working out and that he should look for another job. The employers thought things had gone too far between the two men and wanted to employ someone new.

The ERA found that no formal mutual agreement was reached between the employee and the employers to end the employment relationship.

Accordingly, the employers needed to follow a proper and fair process when dismissing the employee. The ERA found that the employers could not rely on the employee’s poor performance as justification for the dismissal as they had not raised their concerns with the employee about his quality of work or informed him that any failure to improve may result in his termination.   

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

Alan Knowsley

Employment Lawyer Wellington

"Employee" not "contractor" leads to $15,000 penalties...

The Employment Relations Authority has found that a worker was an employee and not an independent contractor as claimed by the employer.

As the employer claimed the person was not an employee they also claimed they did not have to provide an employment agreement and did not have to record hours worked, wages paid or holiday pay earned.

This all came back to bite them when the ERA held the worker was an employee because the employer had failed to comply with its obligations to provide the employee with a written employment agreement and to provide a copy to the Labour Inspector.  They also failed to provide the required wage and time records.  The ERA fined the employer $15,000.  $5,000 of this is to go to the employee to cover unpaid holiday pay.

Alan Knowsley

Employment Lawyer Wellington

Raising Health & Safety concerns leads to loss of job...

Ignoring a manager’s health & safety concerns held not to be the actions of a fair and reasonable employer.  The Employment Relations Authority has upheld an employee’s claim for an unjustified disadvantage and awarded lost wages of $5,400 and compensation for hurt and humiliation of $7,000.

The employee was engaged as a manager of a licenced premises. She raised concerns over fire exits being obstructed by boxes stacked over the exits, an exit door not unlocking during a fire alarm and the emergency plan not giving proper instructions.  The emergency plan required patrons to assemble in the car park but the premises did not have a car park.

The manager also raised concerns about the serving of alcohol to intoxicated patrons.  She found as a result that her hours were reduced on rosters to the point where she was given no shifts at all and the alarm code was altered without her knowledge.  Although she was never actually “dismissed” the ERA held that she was effectively out of work due to the lack of rostered shifts and therefore awarded her lost wages until she found a new position.

In addition to the employment issues over the way she was treated this case raised serious issues about the Health and Safety procedure of this workplace.

1. Fire exits were blocked.
2. Fire exit doors did not unlock in a fire alarm situation as they were supposed to do.
3. The emergency plan had little relevance to the actual premises.  It may have been a cut and paste but no one had given much thought to its application to the building occupied.  To be appropriate an emergency plan musts be effective.  Check out your business plan to ensure it fits your circumstances.
   Alan Knowsley

Employment Lawyer Wellington

Unjustly fired but awarded zero damages...

In a rare outcome the Employment Relations Authority has upheld a claim for unjustified dismissal but refused to award any damages at all due to the employee’s conduct.

The employer raised an accusation of offering illicit drugs in the workplace but failed to follow the correct procedures as it did not give the employee an opportunity to comment on the accusations before it decided to dismiss the employee.

The ERA held that the poor process meant the dismissal was unjustified but had the employer followed a proper process it could have concluded the employee had offered illegal drugs to fellow employees and could have dismissed.  This outrageous conduct of the employee meant that it was appropriate to award no damages to them for the breach of process.

Alan Knowsley

Employment Lawyer Wellington

Failure to clarify nature of relationship costs employer...

The Employment Relations Authority has upheld a personal grievance claim for unjustified dismissal after a painter was told there was no more work for him.

An issue arose whether the painter was an employee or independent contractor.  This had not been discussed between them.  The employer considered him to be a contractor.  The employee considered himself to be an employee but neither discussed their understanding with the other.

After looking at all the relevant factors (control, integration in the business, written documentation, tax situation, payment provisions, nature of the relationship, ability to work for others, ability to subcontract, provision of tools of trade, own business and the parties’ intentions) the ERA concluded that almost all factors pointed to him being an employee.

As the employer had not followed any proper process in the dismissal it followed the dismissal as unjustified.

The employee was awarded lost wages ($2,200) and compensation for distress ($3,500) plus costs.

It pays to clearly communicate and document what sort of relationship is being entered into to avoid acquiring employees when that was not the intention.

Alan Knowsley

Employment Lawyer Wellington