Personal Grievance - Unjustified Disadvantage - Employment Relations Act 2000
Corneal v General Distributors Ltd t/a Woolworths at Gull
24 May 2007, G J Wood, WA 83/07, (13 pages)
UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Misconduct - Applicant alleged required stress leave as result of manager's actions - Applicant felt picked on, but manager simply trying to ensure high standards met - Meeting arranged to work on parties' relationship - Any potential grievances applicant may have had at time in effect resolved - Issues over staffing and reporting - Applicant put in extra hours, to detriment of health, but negative impact on profitability - Disciplinary investigation begun but applicant went on sick leave and meeting delayed - Raised issue of stress and respondent sought further medical information - While on sick leave occasionally attended work - Respondent discovered money missing - Next day, applicant rang to say had money and forgot to bank it - Suspended and disciplinary meeting scheduled - Applicant alleged bullying and discrimination, and claimed this explained respondent's concerns - Respondent indicated would proceed with disciplinary investigation and if applicant wished only to deal with issues by correspondence could miss opportunity to explain - Stated would investigate applicant's complaints separately, and added new allegation applicant took stock without paying - Applicant denied allegations and declined to provide further details of her complaints as requested - Respondent concluded applicant negligent, breached company policy and actions serious misconduct - Applicant's diabetes most likely explanation for times failed to remember to things as required, especially as combined with depression - Not inherently unfair for employer to closely manage staff - Applicant not treated unfairly in relation to stress, and not victim of bullying or discrimination - Summary dismissal for misplacing money substantively justified - Stock issue provided further reason for loss of trust and confidence - Applicant chose not to be involved in disciplinary process - Respondent entitled to carry through its disciplinary procedures and could not be held responsible for failure to have all relevant material before it - Dismissal justified - No unjustified disadvantage - ARREARS OF WAGES - RECOVERY OF MONIES - Applicant went to work while on sick leave - While respondent provided cover for applicant and possible she did not work full shift, refusal to pay did not reflect well on it - Applicant entitled to five days pay - Arrears to be offset against speeding fines incurred by applicant - Balance to be paid to appropriate party - BREACH OF CONTRACT - Respondent concerned abut state applicant's uniform returned in - Applicant not required to pay for new uniform - Counterclaim dismissed - Manager
Result:
Application dismissed (Personal grievance) ; Application granted (Arrears of wages, recovery of monies) ; Counterclaim dismissed ; Costs reserved
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Lupi v We Want You Motor Group Ltd
16 May 2007, D King, AA 148/07, (4 pages)
UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Constructive dismissal - Applicant transferred to new location - Alleged promised would be assistant to General Manager ("GM") - Alleged hostility by GM, demoted to salesman, and managerial responsibilities removed - GM dismissed by Director and went to work for competitor - Applicant raised concerns about perceived demotion and other issues - Director had assumed applicant was happy as had not raised concerns previously - At end of meeting to discuss issues, applicant threatened to take respondent to court - Applicant's behaviour deteriorated following meeting, given formal written warning - Applicant requested mediation but then resigned and went to work for same competitor as GM - Applicant solicited former colleagues to work at competitor - Authority did not accept applicant's account of transfer of location or promise of position - Given subsequent conduct could not accept evidence of poor relationship with GM - No dismissal or disadvantage - ARREARS OF WAGES - Claimed owed commission and bonus - Respondent had practice of lending potential buyers deposit to obtain finance, commission not paid to salesperson until loan recouped - Agreement did not provide commission could be withheld on that basis - Any payments withheld owing - Bonus payments discretionary - No bonus owed - Employees charged penalty fee if failed to lock up - Deductions unauthorised, to be refunded - Salesman
Result:
Applications dismissed (Unjustified dismissal, unjustified disadvantage) ; Application granted (Arrears of wages) ; Arrears of wages (Quantum to be determined) ; Costs reserved
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McLeod v Interspace Airport Advertising New Zealand Ltd
14 Jun 2007, J Crichton, CA 61/07, (7 pages)
UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - After altercation, applicant "shooed" out of meeting by co-worker - Applicant took this as evidence of being "sent away" and claimed dismissed - Respondent considered applicant resigned, based on email she had sent to senior manager and earlier indication she intended to resign - Co-worker claimed told applicant if she should leave meeting and go back to desk and did not direct applicant to leave building by word or gesture - Co-worker had no authority of disciplinary or employment nature in respect of applicant and no power to dismiss her - Not reasonable for applicant to believe "sent away" by co-worker's "shooing" motion - Only message subsequent email could communicate was applicant's intention to end employment - Consistent with earlier indication she intended to resign, and behaviour as left premises - Case not an example of kind where employer ought to give employee "cooling off" period - Applicant resigned - No personal grievance - Sales consultant
Result:
Application dismissed ; Costs reserved
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Rillstone v Product Sourcing International 2000 Ltd
7 Jun 2007, R Arthur, AA 167/07, (16 pages)
PRACTICE AND PROCEDURE - Authority concluded respondent waived privilege in legal advice from previous advisor by referring to content of advice in witness statements - Non-publication order made in relation to evidence of respondent's budgets and accounts - UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Redundancy - Respondent claimed applicant accepted new position with different job content and lower salary, but chose to end her employment - Applicant told her position to be disestablished but would continue to be employed in sales role with lower salary but greater incentives - Later given notice of redundancy and told could apply for sales role - Applicant's evidence did not accept new role preferred - Whether redundancy genuine - Respondent faced genuine commercial pressures - However, new position not sufficiently different to break continuity of employment - Any requirement for change in direction or emphasis on sales well within express terms of applicant's employment agreement - Redundancy not genuine - Clear respondent considered really dealing with performance issues - Email from advisor suggested redundancy shorter process than performance management and simply having lower salary would make new role different, a view Authority considered inconsistent with established law - Employment agreement provided for redundancy where position superfluous to needs of employer, taken to refer to work to be done, not solely salary paid for it - Emphasis on reducing applicant's salary evident in respondent's evidence - Mixed motives for redundancy - Dealing with performance issues predominant purpose - Dismissal also procedurally unfair - Dismissal unjustified - Actions of respondent in purporting to make position redundant and seek applicant's acceptance of new position at lower salary amounted to failure to act in good faith and unjustified disadvantage - Remedies - Insufficient evidence to establish applicant entitled to bonus payment - Merchandiser
Result:
Application granted ; Reimbursement of lost wages ($32,307.69)(14 weeks) ; Compensation for lost benefit (Clothing allowance)($1,346.15) ; Compensation for humiliation etc ($5,000) ; Costs reserved
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Tawhiwhirangi v The Chief Executive, Department of Corrections
27 Apr 2007, G J Wood, WA 65/07, (19 pages)
UNJUSTIFIED DISMISSAL - UNJUSTIFIED DISADVANTAGE - Serious Misconduct - Dismissed for assaulting prisoner - Applicant claimed prisoner asked for contraband and was refused - Prisoner injured during ensuing "control and restraint" - Alleged assaulted by applicant - Preliminary investigation found assault probable and full investigation ordered - Applicant suspended during investigation - Security video footage ("SMS") examined - Investigation found applicant breached code of conduct and allegation of misconduct could be upheld - Given opportunity to respond, however delays upheld process - Found guilty of serious misconduct - Delays in investigation predominantly applicant's fault - Authority found suspension justified - Applicant should have sought assistance instead of using physical and verbal directions at time of incident - Behaviour not consistent with procedures - However, SMS footage inconclusive - Evidence of physical contact in context not sufficient to justify dismissal - Unreasonably concluded assault justified summary dismissal - Finding not open to respondent - Fair and reasonable employer would have given benefit of doubt - Dismissal unjustified - Remedies - Applicant reinstated - Mediation directed to assist reintegration process in workplace - $10,000 compensation would have been appropriate, however, given contributory factors, reduced to $5,000 - Award not stating level of contribution 50 percent, because applicant reinstated and no deductions made from lost remuneration - Corrections officer
Result:
Application granted (Dismissal) ; Reimbursement of lost wages (Quantum to be determined) ; Compensation for humiliation etc ($10,000 reduced to $5,000) ; Reinstatement ordered ; Parties directed to mediation ; Application dismissed (Unjustified disadvantage) ; Costs reserved
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Williams v Napier Motors Ltd t/a Dunedin City Ford
19 Sep 2007, J Crichton, CA 106/07, (19 pages)
UNJUSTIFIED DISADVANTAGE - Applicant saw co-worker viewing pornographic image on manager's computer screen (First incident) - Applicant shocked and upset - Applicant made complaint to manager - Manager assured applicant problem would be dealt with - Applicant claimed saw no action in response so elevated complaint to principal - Principal referred matter back to manager - Applicant received apology from co-worker - Applicant assured by manager there would be no more pornography in workplace - Second incident where co-worker brought pornographic hardcopy image to workplace - Manager told co-worker to put image back in personal briefcase - Applicant proceeded to collect pornographic images from workplace - Applicant took hardcopy image from co-worker's personal briefcase - Applicant claimed was isolated and marginalised by colleagues - Claimed colleagues received rugby tickets when she did not - Applicant also claimed respondent failed to pay commission owed - Applicant also claimed bullying and sexual harassment by manager - Authority satisfied first incident handled reasonably by respondent - Authority satisfied applicant made views known regarding second incident - Manager knew or ought to have known that appropriate to respond positively to objection and required to act - Applicant should have let principal deal with complaint - Opening colleagues private briefcase inappropriate behaviour - Not job of aggrieved party to collect evidence - Manager failed to deal with issue appropriately - Authority satisfied applicant not provided with safe and secure workplace - Unjustified disadvantage - Applicants other claims dismissed - Authority found discriminatory claim not made out - Authority satisfied available to employer to make final decisions about commission disputes - Applicant failed to jointly identify and raise bullying and harassment concerns with employer - Authority satisfied with inquiries and investigation made by respondent regarding sexual harassment claim - Authority satisfied manager not assailant - REMEDIES - Facts support applicants contention that workplace culture supportive of pornography - Authority found applicant did not contribute to grievance by collecting evidence of pornography, however, behaviour was improper - Applicant's failure to upgrade complaint of second incident to principal minor contributory factor - Unjustified dismissal not advanced in claims - Respondent's acknowledged failure to run fair disciplinary meeting taken into account in assessing remedies - Sales representative
Result:
Application granted ; Reimbursement of lost wages ($10,000 reduced for contribution) ; Compensation for humiliation etc ($7,500 reduced for contribution) ; Costs reserved
