Forensic examination of employee’s computer…

The Employment Court has held that the Employment Relations Authority can summons an employee to attend at the Authority and be required to bring their personal computers with them. 

The employee was leaving the employment of their employer to set up in competition.  The previous employer believed that the employee was using confidential information in their new company which was owned by the employer. The employer sought an examination of the employee’s personal computers and that of the company they had set up in competition.

The ERA ordered that the employee attend and bring all computers and passwords and allow the ERA and a forensic expert to examine the computers for evidence of the use of the confidential information.

The employee challenged that order in the Employment Court, but the Court held that the ERA was within its rights to require them to attend and to bring their computers and passwords for examination.

It remains to be seen what information is found on the computers during the examination, so watch this space.

Alan Knowsley

Employment Lawyer Wellington

Fixed term contracts – funding reasons not reasonable…

The Employment Court has held that a fixed term contract for an employee was not based on reasonable grounds.  The employer held a contract for the provision of services, but this was subject to yearly renewal.  The employer claimed that, because it did not know from year to year whether it would be given a new contract, meant it could have a fixed term for its employees working on that contract.

The Court held that even though the financial uncertainty of the new contracts was genuine, the specifying of a fixed term was not based on reasonable grounds.  If the contract was not won in a year the employer would merely have to follow a redundancy process.  The lack of certainty over funding from year to year was no different to any other employer who has to be financially stable to keep employing its employees.  Allowing fixed terms based on financial uncertainty of the business would undermine the restrictions on allowing fixed term contracts to be only for genuine reasons, based on reasonable grounds.

The Court also said that the mere rolling over multiple times of the fixed term contract does not make it a non-genuine reason for a fixed term, but will be a flag to the Court the need for scrutiny of the reasons given.

As the fixed term clause was held not to be based on reasonable grounds, the employee was deemed to be a permanent employee.  His employment could therefore not come to end just by the end of the fixed term.

Alan Knowsley

Employment Lawyer Wellington

Clarification of what is included within “ordinary weekly pay”…

The Employment Court has clarified what is included within “ordinary weekly pay” when calculating what should be paid by way of holiday pay to an employee.  The case arose around commissions which were paid on irregular intervals to employees.

The dispute arose as to whether these commissions were part of the ordinary weekly pay or could be included in the average weekly earnings for an employee for the calculation of holiday pay.

The Court found that in this case the commission payments were irregular and for varying lengths of time and therefore were not part of a regular commission payment.

Regular commission payments must be included in the calculation of ordinary weekly pay, whereas irregular payments which occur over periods of longer than a week do not have to be included in the ordinary weekly pay for calculation of annual leave entitlements.

Alan Knowsley

Employment Lawyer Wellington

Poor process costs employer again…

The Employment Relations Authority has upheld a personal grievance claim for unjustified dismissal after a worker was fired after eight hours employment.

The employee was on a trial period, but had not been provided with a written employment agreement because the employer had a policy of only providing written employment agreements at the end of the trial period.

The failure to provide a written employment agreement incorporating the 90 day trial period was fatal to the employer’s ability to dismiss under the trial period, because such trial periods must be in writing.

The ERA awarded the employee lost wages and $3,000 compensation for the hurt and humiliation suffered after being fired at the end of his first day.

Alan Knowsley

Employment Lawyer Wellington

Iwi manager reinstated pending hearing…

The Employment Relations Authority has ordered the interim reinstatement of an Iwi Manager who was dismissed from her position after refusing to sign a new employment agreement with reduced terms.

The manager had been on a fixed term contract, but when that term ended it was rolled over and another fixed term was offered.  When that fixed term ended it was again rolled over and another fixed term entered into.  At the end of that term the employee was offered a full time permanent contract, but on reduced benefits.  She advised the employer that she was considering the matter and taking legal advice and during that time she was dismissed on the basis that her fixed term had come to an end.

The ERA held that she had a good claim to be reinstated in the interim, as despite the breakdown in her working relationship with the current Chairman of the employer, another board member could take on that liaison role pending the outcome of the full hearing.

Employers need to be aware that fixed term employment agreements can become permanent if they are rolled over and if there is no longer a genuine reason for the fixed term.  There must be a genuine reason on each occasion that a fixed term is extended and the reason for that fixed term must be expressed in the employment agreement.

Alan Knowsley

Employment Lawyer Wellington

Unjustified dismissal costs $23,200…

The Employment Relations Authority has found that an employee was unjustifiably dismissed by her employer when she turned up for work.  She had not even got out of her car when the employer approached her and told her not to bother to get out of the car and that she wasn’t to come to work.  The employer also demanded her work keys and was acting in a very furious and agitated manner.

The ERA held that there was no proper process followed for the employee’s dismissal and that contrary to what the employer claimed at the ERA hearing it did not have the right to make unilateral changes to an employee’s working hours without raising matters with the employee.

It took the employee 24 weeks to obtain alternative employment and she was entitled to be paid for the lost wages of $23,200.

Alan Knowsley

Employment Lawyer Wellington

No consultation over redundancy…

The Employment Relations Authority has upheld a personal grievance claim for an unjustified disadvantage in relation to a redundancy.  The employer had notified the employee that they were closing the store where she worked and that she would be likely be made redundant.  It then went on sometime later to confirm the closing of the store and her redundancy.  It made no effort to consult with her over the redundancy or any options for redeployment in any of the other stores that it owned.

The ERA said that even though the options for alternative employment were limited and unlikely the employer still had the obligation to consult with the employee over redundancy and failed to do so.  She was awarded $750 compensation for the disadvantage she suffered, but no lost wages.

No wages were awarded because while she was working out her notice of redundancy the employee was dismissed for serious misconduct for falsifying wage and time records and failing to follow instructions.

The ERA considered whether her behaviour meant that her remedies should be reduced but concluded that she did not contribute to the failure to consult with her over the redundancy and that the dismissal for serious misconduct was totally unrelated.

Alan Knowsley

Employment Lawyer Wellington

Unjustified dismissal following bullying allegations…

The Employment Relations Authority has upheld a personal grievance for constructive dismissal and unjustified disadvantage.  The ERA has ordered the employer to pay over $28,600 to the employee.

The employee raised concerns she had with another employee bullying her and asked the employer to help resolve those issues.  The employer arranged a meeting with the employee to talk about the bullying concerns, but when the employee arrived the employer refused to meet her and his wife told the employee to start looking for another job.

The employee was then sent a letter raising serious disciplinary concerns and invited to a meeting to discuss those.  When she turned up at the meeting she discovered that the person she alleged to have bullied her was present at the disciplinary meeting.  The employer then proceeded to raise matters in front of the other employee including regarding the employee’s past employment.

In addition the support person who attended with the employee was not allowed to speak at the meeting and was shut down by the employer whenever they attempted to do so.  The disciplinary meeting was followed up by a letter from the employer saying that he expected a much improved attitude and behaviour from the employee.

The employee went off on stress leave as a result of the employer’s behaviour.  While she was on stress leave the employer reduced her hours from 42 hours per week to 25 hours per week and gave the additional hours to the alleged bully.  In addition the employer demanded that the employee, who had raised the concerns about bullying, pay him $500 to compensate him for his wasted time dealing with the bullying complaints.

The employee resigned and alleged that she had been constructively dismissed.

The ERA agreed that the employee had been constructively dismissed because the employer had failed to communicate with her fairly or reasonably and it failed to properly investigate her complaints of bullying.  Having the alleged bully present at the disciplinary meeting was also not appropriate, as was demanding the employee pay for the investigation. Failing to let the employee’s representative speak at the disciplinary meeting was also in error.

The employer was ordered to pay over $8,200 in lost wages, $850 for unpaid Kiwisaver contribution, $224 for a day worked, but not paid, and $1,230 holiday pay which was unpaid plus interest.  In addition the employer was ordered to pay $18,000 compensation for the way they had handled the matter.

It pays to take advice from an experienced professional when dealing with issues of bullying and discipline in the work force.  A failure to get matters right can be very expensive.

Alan Knowsley

Employment Lawyer Wellington

Unjustified dismissal for swearing at customers…

The Employment Relations Authority has upheld a personal grievance claim for unjustified dismissal after an employee was fired for swearing at customers.

The ERA found that the employee had been using colourful language with customers for several years without complaint and without the employer taking any action.  The ERA found that the employer’s decision to dismiss the employee for the colourful language was unreasonable given their previous attitude towards it.

The ERA held that the employer should have warned the employee not to continue using such language and have then only taken action if there had been a repeat of the behaviour.  That did not happen and the employee was fired for language used before she was warned to stop using the language.

Even though the employer relied on a customer complaint about the language that complaint related to a date before the warning was given.

The ERA awarded $4,000 in lost wages for the period the employee was out of work, plus $16,000 compensation for the hurt and humiliation suffered.

When carrying out a disciplinary process it is important to ensure that you properly put all allegations to the employee and ensure that your facts are correct.  In addition you can only discipline employees for matters that they know are wrong and it is not appropriate to ambush employees with allegations after having put up with the behaviour for several years.

If you want behaviour to change then you need to put a line in the sand and measure the employee’s behaviour after that point and not rely on incidents from before that point.

Alan Knowsley

Employment Lawyer Wellington