Employee ordered to pay costs…

The Employment Relations Authority has rejected a claim by an employee against his employer and ordered the employee to pay costs to the employer.  This arose in unusual circumstances in that the claim the employee was bringing was under a contract and not in relation to his employment.  The ERA therefore had not jurisdiction to hear the claim and dismissed the claim.

As well as ordering the employee to pay costs to the employer it also ordered increased costs because the employee had failed to comply with the timetable directions made by the ERA and was late filing briefs and other documents.  This led to increased costs being incurred by the defendant employer.

If you do have a claim you must ensure that you bring it to the right jurisdiction or else you will be liable for the costs of your failed attempt.  The employee could have just brought the claim in the Disputes Tribunal or District Court.  If you are unsure as to what jurisdiction you should file a claim in, it pays to get advice from someone experienced in these matters before you launch into proceedings.

 

Alan Knowsley

Employment Lawyer Wellington

Employee of two months awarded $27,000…

An employer has been ordered to pay $27,000 to an employee after the Employment Relations Authority concluded that the employee, who had only worked for the employer for two months, had been unjustifiably dismissed.

The employee raised a personal grievance with the employer and later claimed in the ERA because the employer did not pay the correct wages and later dismissed the employee.

The employer did not attend the ERA hearing. At the investigation meeting, the ERA delayed starting in case the employer or its representative “had become caught up in traffic or had difficulty finding a park”. When a party does not appear at the hearing, the ERA is required to continue as if both parties had engaged in the process.

In the employer’s absence, the ERA considered the employer’s possible arguments or defences.

The ERA concluded that the employee had been unjustifiably dismissed. The employee was awarded:

• $9,000 in lost wages;
• $10,000 in compensation for hurt and humiliation;
• $3,121 in unpaid wages and holiday pay; and
• legal fees.

In addition, the employer was penalised $2,000 for breaching the Employment Relations Act, with this to be paid to the employee.

In total, the employer was ordered to pay $27,100. This was an expensive outcome for the employer. Not engaging or participating in the personal grievance process did not work out well for the employer.

If they had taken advice before paying the wages incorrectly, before dismissing the employee, and before failing to defend the claim, the outcome may not have been as bad for the employer.

Ben Ruback

Employment Lawyer Wellington

Raise a personal grievance within 90-days or risk losing the right to do so …

If an employee does not raise a personal grievance within 90 days they lose the right to bring a claim unless the Employment Relations Authority finds exceptional circumstances justifying allowing more time to raise it.

An employee may raise a personal grievance with their employer for a number of reasons, including if the employee has been unjustifiably dismissed or unfairly disadvantaged.

The 90-day period begins on the date the action alleged to be a personal grievance occurred, or came to the attention of the employee (whichever was later).

In order to raise a personal grievance the employee must make the employer aware of it, or take reasonable steps to raise it.

If the employee does not raise the personal grievance within the 90-day period then he or she may only do so with consent from the ERA, or with the permission of the employer.

There are limited circumstances where the ERA would allow a personal grievance to be raised out of time.

In one recent case, an employer demanded that the employee provide the employer with his bank card and pin number so that the employer could “pay wages”. Over an 18-month period, the employer withdrew over $20,000 from the employee’s bank account.

The employee sought to raise a personal grievance by sending the employer a letter that referred to “employment grievances”, but the letter did not specify the issues which the employee wanted the employer to address.

The ERA said that the employee failed to raise a personal grievance because of the unclear language used. However, it then said that it had no real option other than to conclude that there were exceptional circumstances, because of the behaviour of the employer.

Other exceptional circumstances might include, for example, where the employee’s health is so badly affected that they are incapable of raising the personal grievance in time.

It is very difficult to meet the threshold of ‘exceptional circumstances’ which justifies raising a personal grievance out of time.

The case above is one where the ERA considered extraordinary circumstances clearly existed because the employer was illegally taking money from the employee.

An employee should raise any personal grievance with the employer within the 90-day time frame by using straight-forward and direct language that tells the employer what the grievance is, and what the employee wants done to resolve it.

There is a range of remedies available to the employer. These can include legal remedies such as compensation, payment for lost wages or reinstatement, and can include non-legal remedies such as an apology or, where possible, reassigning the employee’s duties.

An employee who wishes to raise a personal grievance should seek assistance so that they are aware of the available remedies, and can then make clear to the employer what their preferred outcome is.

Firms like Rainey Collins provide an excellent service for such introductory assistance via their fixed-price Initial Consultations.

Ben Ruback

Employment Lawyer Wellington

Three year dispute results in employee reinstatement …

When an employee is unjustifiably dismissed, he or she may seek remedies from the employer which includes compensation or reinstatement.

Under the current law, if an employee seeks reinstatement, the Employment Relations Authority (“the ERA”) has the discretion to reinstate the employee to the employee’s former position or a position no less advantageous to the employee.

In one case, an employee was dismissed after the employer reached the conclusion that the employee did not follow the strict health and safety policies of the company, which put himself and other employees at risk of injury or death. According to the employer, the employee did not appreciate the significant risk of his behaviour.

Following an application to the ERA, the employee was reinstated to his prior position, despite the fact that it had been 3 years since the employee’s dismissal. The ERA ordered the employer to provide training for the employee in order to refresh and update his skills.

Under proposed changes to New Zealand’s employment law, reinstatement will become the primary remedy for a personal grievance (where the employee is no longer employed by the employer). The ERA will award reinstatement wherever it is practicable and reasonable to do so, regardless of whether it also provides other remedies such as compensation.

Jaenine Badenhorst

Employment Lawyer Wellington