Second hand information not reliable…

The Employment Relations Authority has upheld an unjustified dismissal claim because the information relied upon by the employer was unreliable.

A client of the employer was seriously injured while in the employer’s care, such as they had to be hospitalised.  However, an independent investigation could not conclude that the injury occurred while the client was under the care of the particular employee. 

Several months later a manager decided to enquire further into the incident and talked to the Police who had originally investigated the injuries.  The Police provided verbal information to the manager, but would not release the pathologist’s report as to the timing of the injuries.  Although the pathologist gave a likely time of the injuries, they could not be sure as to when the injuries had occurred.  The manager of the employer carried out a further investigation and relied on the second hand Police information, incorrectly attributing an exact time of injury to the pathologist.

The ERA held that the manager should not have relied on second hand information, but should have obtained and read the pathologist’s report themselves.  Given the serious consequences of an employee losing their livelihood, it was necessary that the information be very reliable and that was not the case here.

The ERA awarded $15,000 compensation to the employee.

Alan Knowsley

Employment Lawyer Wellington

Workplace sexual misconduct register…

The Ministry of Business, Innovation & Employment has established a centralised register of allegations of workplace sexual misconduct. 

Data will be collected from calls made to MBIE or its Mediation Services but all personal identifying information will be removed, so that names of the parties will not be kept in the register.

Complaints about sexual harassment must be raised with the employer within 90 days if the employee wishes to bring a personal grievance in the Employment Relations Authority.  However, complaints can still be lodged with the Human Rights Commission within 12 months of the offending behaviour and damages awarded by the Human Rights Commission tend to be greater than those awarded by the Employment Relations Authority.

It pays to take advice from a professional experienced in this area as soon as possible if you believe you have been subjected to sexual harassment in the workplace.

Alan Knowsley

Employment Lawyer Wellington

Blameworthy employee awarded over $8,000 after unfair dismissal

An employer has been ordered to pay an employee over $8,000 after not following a proper process when suspending an employee and for unfair dismissal.

The employee, a baker, was seen by a manager throwing a ball of dough at another employee. The employee said it was a joke and that the behaviour occurred on a daily basis by other staff.

The employer considered that the behaviour amounted to serious misconduct because of the risk of contamination of the bakery’s products and the risk that an employee operating machinery would become distracted by the behaviour and cause an accident.

A meeting took place moments after the incident between the employee and the owner/director. The employee did not offer any explanation at the meeting. The employer suspended the employee, giving the employee 30 seconds to leave the building.

The meeting was rushed and was undertaken without an opportunity for any of the parties to ‘cool off’. The meeting was not held at an appropriate location. Instead it occurred outside the break room where other staff could overhear what was going on.

The ERA said that although the employer had reason to suspend the employee, the process taken in doing so was unfair to the employee.

The employee was invited by email to attend a disciplinary meeting. The employee, however, was not expecting any correspondence from the employer and did not check his emails. This misunderstanding may have been caused by a lack of clear communication between the parties, particularly as the employee’s first language was not English. When the employer had not heard from the employee for some time, the employee’s employment was terminated.

The ERA said while the dismissal process was fair because the employee did not respond in time, the employee’s behaviour did not amount to serious misconduct. As a result, the dismissal of the employee was deemed to be unfair.

The ERA said the employee’s actions were blameworthy and contributed to the situation giving rise to the dismissal. The ERA awarded a reduced sum of $4,191 for lost wages and $4,000 for hurt and humiliation suffered by the employee.

Serious misconduct is behaviour which undermines the trust and confidence between the employer and the employee. Serious misconduct typically includes behaviour such as violent behaviour, dishonesty, theft, fraud, and actions endangering the health and safety of the employee or others.

Alan Knowsley

Employment lawyer

Wellington

Employer fined for breaching Record of Settlement

An employee applied to the Employment Relations Authority (“the ERA”) after her former employer breached the terms contained in a Record of Settlement agreed between the employer and the employee.

The employer had agreed to pay the employee $10,140.00, but it failed to make the payment due to constrained finances. The employer said that there would be increased business over the approaching summer period and asked the ERA to allow payments to be made by monthly instalments. The ERA agreed and cautioned the employer of the consequences of failing to comply with the ERA’s orders.

The employee had to make a second application to the ERA after the employer failed to make the payments agreed to. The ERA said that the employer was quick to enter an agreement to avoid sanctions but then became careless once the consequences were avoided. The employer should not have agreed to make monthly instalments if it was unwilling or unable to adhere to the agreement. The ERA said the breach was serious and the penalty should be proportionate to the level of seriousness of the breach and the harm caused.

The employer was penalised $4,000.00 plus costs and was still required to pay the employee the outstanding balance of the sum agreed in the Record of Settlement.

The maximum fine for breaching a Record of Settlement is $20,000.00 per breach so it pays to adhere to the terms of settlement to avoid further financial troubles.

Alan Knowsley

Employment Lawyer

Wellington

Spiteful text causes $119,000 loss…

An employee has been convicted in the District Court of causing loss by deception and has been ordered to pay $19,000 in reparation to his former employer.

The employee had been fired and as he was leaving the premises sent a text to his employer saying “left a little present in the last production”. 

The employer was obliged by its contamination procedures to immediately shut down production and a large export shipment was cancelled and the product was destroyed.  The employee sent a second text 30 minutes later retracting his first message, but by then it was too late and the company’s losses for the missed shipment and lost production were $190,000.

The employee’s parents have re-mortgaged their house to help him pay the reparation ordered.

Alan Knowsley

Employment Lawyer Wellington

PIP leads to health & safety concerns…

The Employment Court has found that an employer’s performance improvement plan, which extended over seven months, resulted in harm to an employee and therefore an unjustified disadvantage.

The employer was trying to manage the employee’s behaviour, but knew of an underlying mental condition that the employee had which resulted in extreme anxiety. This was made worse by the process, without the employer seeking to obtain medical advice on the effects of the PIP on the employee.  The Court held that that was not what a fair and reasonable employer could do in the circumstances.

This became a health and safety issue as the employer failed to ensure a safe work place for its employee, as it did not keep them free from harm.

In addition the employer was also at fault because the manager who was advancing the disciplinary process had been closely involved in the performance improvement process, which had become increasingly fraught, and having that manager involved was also not a step of a fair and reasonable lawyer could have taken.

The damages that the employer will be liable to pay are yet to be determined in a further hearing.

Alan Knowsley

Employment Lawyer Wellington

Employer fined for crash after work…

The District Court has imposed a fine and reparation on a contracting company after one of its employees crashed a work vehicle on the way home from work.  The exact cause of the accident has not been determined, but it is assumed that the employee fell asleep while driving at about 2.45 am.  The employee had been working long hours in the two weeks preceding the accident and had worked for more than 16 hours on the day of the accident.

The Court found the company had failed to put in place a fatigue management system to identify specific factors that can result in fatigue, it also failed to put in place maximum work hours and minimum breaks and to monitor them.  It also failed to train its workers in recognising and understanding fatigue.  The District Court said that a starting position for a fine would have been $650,000 but for discounts for remorse, the company’s prior safety record, cooperation and its guilty plea.

In addition to the fine the company was also ordered to pay $80,000 reparation plus $9,300 financial costs to the deceased’s family.

It is worth noting that the employee was offered a lift home after the work shift, but declined because he wished to take the work vehicle to his home.  He was therefore not under instruction to drive the work vehicle after his shift, but that did not alter the company’s liability for his death.

 

Alan Knowsley

Employment Lawyer

Wellington

Failure to investigate bullying results in $68,000 damages…

The Employment Relations Authority has upheld a claim for unjustified dismissal after an employee complained of bullying by management.

The Employment Relations Authority held that the employer failed to provide a safe workplace because it did not provide support to the employee who complained of bullying and failed to properly investigate the allegations.  Instead it sacked the worker for taking excessive time off following the allegations.

The employee was called to attend a meeting to investigate the time he had taken off, allegedly ill due to the bullying, but was only given 24 hours’ notice of the meeting.  When the employee advised that he could not attend the meeting the employer’s response was to accuse the employee of multiple failures to attend meetings, but the ERA found that no other meetings had been arranged or offered.

The ERA ordered compensation for hurt and humiliation of $35,000 and payment of $32,900 in lost wages.

If an employee raises a complaint of bullying, then the employer must fully and fairly investigate the allegations and provide support to the worker during and after the investigation, so the employer has done all practical steps to provide a safe work place.

Employees need to raise matters with their employer as soon as possible to give the employer a reasonable opportunity to deal with the alleged bullying. The employee did so here, but the employer did not deal with the allegations properly.

 

Alan Knowsley

Employment Lawyer

Wellington

Employers fined for lack of records…

The Employment Relations Authority has fined two employers $7,500 for failing to keep proper employment records and to ensure that their workers were paid the correct holiday pay.

The Labour Inspectorate had sent Improvement Notices to the companies, but they failed to improve their records or to make the correct payments.

Alan Knowsley

Employment Lawyer

Wellington

Employee breaches confidential settlement…

The Employment Relations Authority has found an employee breached the terms of a confidential settlement by telling other employees that she had “won” her personal grievance.  The employee had apparently returned to work and told several other employees of her “win”.

The Employment Relations Authority made an order that the employee comply with the Settlement Agreement and ensure the confidentiality of its terms are maintained and also ordered her to pay costs to the employer.

Alan Knowsley

Employment Lawyer

Wellington

Employee lie bites back...

The Employment Court has rejected an appeal for unjustified dismissal and unjustified disadvantage of a worker accused of sending a threatening text about their manager.  The text intimated physical violence towards the manager.

The employer became aware of the text and started a disciplinary investigation.  During the investigation the employee denied having sent the text and provided evidence pointing towards the text being fabricated to set him up.

The employer then embarked on a longer investigation into the text to try and establish who had set up the employee by faking the text.  Eventually the employee admitted that he had actually sent the text and that his evidence about being set up was untrue.

The employer’s view was that they would have taken the employee back, if the only issue had been the threatening text sent, because they could have redeployed him to a different area of the workplace.  However, once they knew that the employee had lied during the investigation they were not prepared to take the employee back. This was because they had lost trust and confidence that they could rely on his honesty going forward.

The Employment Court agreed with the employer that the lie amounted to a serious breach of trust which justified not reinstating the employee. The Court held that, even if the employee had been successful in establishing an unjustified dismissal or personal grievance for unjustified disadvantage, no damages would have been awarded because of the employee’s lie.

The employee would have been much better off had they just accepted that they sent the text and they would then have been able to have returned to work.  Their lies to cover up resulted in them being out of work totally.

Alan Knowsley

Employment Lawyer

Wellington

$6,000 fine for illegal worker...

An employer has been fined $6,000 in the District Court after being found guilty of illegally employing a migrant worker for three and half years.

The Court held that the defendant’s actions have undermined the foundation and integrity of New Zealand’s immigration system and the offending is regarded as serious.

Employers must accept responsibility to ensure that their employees are legally entitled to work in New Zealand.

Alan Knowsley

Employment Lawyer

Wellington