Employer ordered to do 60 hours community service…

The District Court has found an employer guilty of charges under the Health & Safety at Work Act and under the Electricity Act after an employee was injured at work.  The employee fell and hit his head after being electrocuted in the workplace.

The Court held that the employer failed to take into account the danger of electrocution and had no health and safety plan in place to avoid that risk.  The employer was fined $65,000 and ordered to pay $20,000 compensation to the employee.  The employer was also ordered to undertake 60 hours of community service.

Alan Knowsley

Employment Lawyer Wellington

$5,000 penalty for breach of settlement agreement…

The Employment Relations Authority has found that an employer was in breach of a settlement agreement reached at mediation.  It has issued a Compliance Order for the employer to pay the $4,000 due under the settlement agreement.  It also ordered the employer to provide the Certificate of Service agreed to without any adverse comments about the employee in the Certificate of Service.  A certificate previously provided with adverse comments does not comply with the requirement to provide a Certificate of Service.  That is because a Certificate of Service with adverse comments is unusable by the employee for providing to new employers.

In addition the ERA ordered the employer to pay a $5,000 penalty for his breaches of the settlement agreement.  $3,000 of that is to be paid to the employee with the $2,000 balance to the Crown.

Alan Knowsley

Employment Lawyer Wellington

Employer and manufacturer both fined after employee injured…

The Christchurch District Court has fined an employer $75,000 and ordered it to pay reparation of $35,000 to an injured worker after a guard on a machine was removed resulting in a hand injury to the employee.

The Judge held that removal of the guard was an inexcusable action and the serious injury to the employee was totally foreseeable.  Of interest also was that the manufacturer of the machine was also fined ($60,000) because the machine should not have been able to operate with the guard removed.  An interlock devise should have prevented the machine from operating.  The company was not ordered to pay any reparation to the victim because the employer’s act in removing the guard was the operative cause of the injury and this was beyond the control of the company. 

This prosecution of the manufacturer for failing to comply with safety obligations when it manufactured the piece of equipment was apparently the first time this type of charge had been laid under the Health & Safety at Work Act.

Alan Knowsley

Employment Lawyer Wellington

Claim for unjustified dismissal upheld…

The Employment Relations Authority has upheld a claim for unjustified dismissal of an employee following a disciplinary meeting.  The employee was on a final warning in relation to various prior incidences when he was dismissed for failing to follow up a customer who went to a competitor when he was not contacted.

The ERA found that, although the employer had followed a fair and reasonable process for investigating the complaint (all of the steps followed were correct), it was not justified in finding that the conduct amounted to serious misconduct bringing with it the sanction of dismissal.

The failure to follow up a customer should have only resulted in a warning, despite the employee being on a final warning for other types of matters, it could not justify dismissal.

So this is a rare case where the employer has followed the process correctly, but reached a wrong conclusion.  Normally unjustified dismissals have an employer following a wrong process which could have been justified had they followed the correct process.

The ERA awarded the employee $11,000 in lost wages and $6,800 in compensation for hurt and humiliation.  The hurt and humiliation compensation was reduced from $8,000 due to the employee’s conduct in failing to follow up the customer and failing to accept responsibility for that error.

Alan Knowsley

Employment Lawyer Wellington

Sham company fails to protect dodgy employer…

The Employment Relations Authority has found an employer liable for failing to pay the minimum wage, failing to pay holiday pay, failing to keep and produce wage and time records and failing to keep and produce holiday leave records.  The employer was also found to have not provided employees with compliant employment agreements.

The employer advertised and took on overseas workers who were in the country on working visas.  After they had carried out several weeks work he then failed to pay them anything for the work done.

To try and avoid personal liability the employer had set up a sham company with another overseas worker as its sole director and shareholder, but that person was being controlled by the employer and the employer was held in reality to be the employer, not the sham company.

Because the employer did not disclose he was acting for a company which was to be the employer he was held to be personally liable.

Even if he had disclosed that it was a company which was the employer, a defaulting director who takes on liabilities, with no intention that they be paid by the company, can also be held to be personally liable.

In addition to ordering the employer to pay the unpaid wages and holiday pay the ERA has also said that it will penalise the employer for his behaviour.  The employer can be fined up to $20,000 for each breach in relation to each employee, so the potential fine in this case is over $100,000.  It will be interesting to see what penalties the ERA imposes on this employer who set out to deliberately scam employees out of their wages.

Alan Knowsley

Employment Lawyer Wellington

Claim rejected for bad faith…

The Employment Court has rejected a claim by an employee of the Ministry of Business Innovation & Employment for bad faith in the way the Ministry conducted an investigation into a complaint by the employee against a member of the Employment Relations Authority.

The employee was one of the staff who assisted Authority members with the administration of claims to the Employment Relations Authority and a dispute arose as to what occurred in the lead up to a different Employment Relations Authority hearing between other parties. 

The Chief of the Employment Relations Authority had carried out an investigation, but the employee was not satisfied with that and asked for his employer to carry out its own investigation.  Such an investigation was carried out and the employee was not satisfied with that investigation and raised the allegations of bad faith.

The Employment Court found that there was no bad faith in the way the employer carried out its investigation.  The Investigating Officer was very thorough and very fair in the way she dealt with the issues.  She put all the issues fairly to the parties and gave them opportunities for putting their points of view.  She also gave them opportunities to comment on the draft report before it was finalised and reached very reasonable conclusions on the facts.  She did not accept the versions of events of either the complainant or the responding Employment Relations Authority member, but concluded that she was unable to reach a conclusion as to which version of events was correct.

The case is important because it shows that an employer has to carry out a fair and reasonable investigation of complaints, but is not obliged to decide in every case which version of events was correct.  A decision that the investigator could not reach a conclusion as to which version of events was correct was an appropriate outcome for the employer to reach.  That conclusion was coupled with measures put in place by the employer to try and prevent such a misunderstanding occurring in the future between a member of its staff and a member of the Employment Relations Authority.

Alan Knowsley

Employment Lawyer Wellington

Employer ordered to pay over $30,000 for failing to pay employees…

The Employment Relations Authority has ordered an owner-operator to pay over $30,000 in penalties for failing to properly pay its employees.

The owner-operator claimed that training was being provided to the workers, rather than employment. However, the employees were required to record their work hours, which the owner-operator then charged to a contracting firm.

The contracting firm paid money to the owner-operator, however, it failed to pay the employees.

The ERA ordered the owner-operator to pay over $30,000 in penalties for 60 employment breaches. These breaches were;  a failure to maintain a holiday and leave record, failure to pay holiday pay, failure to pay minimum wage, maintain wage and time records and a failure to maintain a copy of the relevant individual employment agreement.    

Ben Ruback

Employment Lawyer Wellington

Five year old personal grievance dismissed…

The Employment Relations Authority has dismissed an employee’s application after the employee filed nearly 5 years after the events leading to a personal grievance occurred.

The employee resigned from her job in 2013, and subsequently, raised a personal grievance with the employer.  The employer investigated the employee’s claims and found that the employee had not been subject to the kinds of behaviour claimed in her personal grievance.  The employer concluded that the employee resigned on her own volition. 

In September 2018, the employee sought resolution of the issues through MBIE’s mediation services but the employer declined.  The employee then filed in the ERA.

Under New Zealand law, no action may be commenced in the ERA or the Employment Court in relation to a personal grievance more than 3 years after the date on which the personal grievance was raised. The employee’s application was dismissed because it was filed outside the three year time limit.

It is important for employees to take action swiftly after the events leading to a personal grievance have occurred.  An employee can raise a personal grievance in the 90 days following the events, or outside this time frame by agreement with the employer or a successful application to the ERA.  However, the ERA or the Employment Court does not have the power to extend the 3 year time limit, as demonstrated in the case above.

Ben Ruback

Employment Lawyer Wellington

Constructive dismissal from improper redundancy process…

The Employment Relations Authority has found that an employee was constructively dismissed after he resigned following receiving notice of a proposed redundancy.

The employee had raised a complaint with his employer of bullying and threatening behaviour by the employer.  The same day the employer responded with a proposed redundancy.  The ERA found that the proposed redundancy was not genuine and was entered into for an improper reason.  As a result the resignation of the employee was a constructive dismissal.

The employee was awarded $3,690 lost wages plus $9,000 for hurt and humiliation.

In addition the employer was fined $2,000 for its breach of the Employment Agreement by the improper redundancy process.

The employer was also criticised for failing to agree to attend mediation to attempt resolution of the matter.  Attending mediation was included as a term of the Employment Agreement and the employer was therefore obliged to attempt resolution at mediation.

The employer was also criticised for refusing to attend mediation because the employee got the legal name of the employer incorrect in his request for mediation.  The ERA said the employer should not have taken that point, but should have corrected the employee as to the legal name of employer and agreed to attend mediation.

Alan Knowsley

Employment Lawyer Wellington

Employee fairly dismissed for improper conduct…

The Employment Relations Authority has rejected a claim for unjustified dismissal following a disciplinary process.

The employee marked down the price on products in a shop without getting proper authorisation for the price.  The price was lower than cost price and would not have been authorised by management.  The employee then proceeded to purchase the stock items at the reduced price.

The employer raised the matter as a misconduct investigation and advised the employee fairly of what the allegations were and gave them a fair opportunity to respond to the allegations.  The employee was found guilty of serious misconduct and was dismissed.

The ERA found that there were no defects in the process followed by the employer and that the whole incident as brought about by the employee’s improper conduct in lowering the price without authorisation and then attempting to take advantage of that lower price by purchasing the product for herself.  All her claims for a personal grievance were dismissed.

Alan Knowsley

Employment Lawyer Wellington