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Gillette v Cooley
5 Sep 2006, G J Wood, WA 119/06, (3 pages)
UNJUSTIFIED DISMISSAL - Constructive dismissal - No appearance by applicant - Applicant's representative given leave to withdraw before investigation - Neither respondent or former representative knew how to contact applicant - Respondent's evidence accepted - Applicant never directly told respondent why left employment - Statement of problem claimed left because respondent failed to investigate fight between applicant and fellow worker, and method of dismissal of that worker - Respondent decided not to investigate fight as took place after work and off site - Decision fair and reasonable employer would likely make - Other employee's dismissal had no direct impact on applicant in employment context - No breach of duty by respondent - No causal connection between applicant leaving and events described - No constructive dismissal - ARREARS OF WAGES - All wages paid - Applicant claimed respondent obliged to pay transport money each week - Respondent gave another employee money in first week of employment because of immediate transport difficulties - Applicant received money as took worker to site - Obligation to pay transport money did not continue beyond first week of other worker's employment - No monies owing to applicant under arrangement - Length of service five weeks
Result: Application dismissed ; Costs reserved
Keast v Stainless Design Ltd
23 Aug 2006, J Scott, AA 272/06, (10 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Applicant claimed unjustifiably suspended and dismissed - Respondent gave clear instruction to applicant that two new employees be given comprehensive induction process prior to commencing employment - Applicant aware emphasis on full induction with no pressure on new employees being productive on first day - Induction included equipping employees with correct safety footwear - One hour into new employees' first day managing director discovered employees working without safety footwear - Told applicant employees should not be working - Applicant replied would take full responsibility for employees' safety but managing director ordered work to stop - Respondent arranged disciplinary meeting - Applicant offered two days leave to prepare - No suspension - Respondent concluded failure to follow lawful instruction and safety policy - Respondent's investigation meticulous - Serious misconduct had taken place - Applicant aware of company policies and given clear instruction - Explanation offered by applicant naive, facile and at odds with standard of conduct expected of employee in applicant's position - Induction included equipping employees with safety footwear - Respondent arranged disciplinary meeting - Applicant's argument safety footwear not mandated in regulations missed the point - Dismissal justified - Length of service one year nine months - General manager
Result: Application dismissed ; Costs reserved
Knapp v Clinkers Ltd t/a "The Old Bill"
27 Sep 2006, J Crichton, CA 142/06, (7 pages)
UNJUSTIFIED DISMISSAL - Constructive dismissal - Applicant closed up on night patron remained in bar after lock up and subsequently set off alarm - Applicant called to meeting where responded fully to allegations and denied any wrongdoing - Also raised security issues - Applicant claimed safety concerns minimised by employer and felt not being believed, so offered resignation - Applicant encouraged to reconsider but subsequently confirmed resignation - Timing of events at meeting significant, by time applicant offered resignation knew respondent regarded matter as open because of clear statement further inquiries to be made - This went some way to repairing damage done by unsatisfactory letter summoning applicant to meeting - Letter appeared to state facts rather than allegations and implied information at hand pointed to applicant as culprit - Meeting fair and reasonable exercise of employer's obligation to investigate serious allegation and process did not unfairly impact on applicant - Applicant's behaviour showed she made proper use of meeting process to defend herself - Resignation letter raised two issues - Applicant had health and safety concerns because patron able to remain in bar - Also concluded integrity seriously questioned because thought respondent preferred drunken patron's explanation - Based on meeting's tone did not think possible to return - Applicant pre-judged respondent's response - Notion resignation foreseeable seemed remote indeed - Security concerns may have grounded personal grievance but applicant did not give respondent chance to ensure safety - Evidence suggested respondent took security seriously and allegation workplace unsafe could not be made out - No constructive dismissal - Length of service six months - Duty manager
Result: Application dismissed ; Costs reserved
Li v Astral Management Ltd
24 Aug 2006, P Cheyne, CA 129/06, (5 pages)
ARREARS OF WAGES AND HOLIDAY PAY - Two written employment agreements; one in Mandarin, other in English - Significantly different terms - English agreement signed last and applied during employment - Accuracy of applicant's record of hours worked not accepted - Overtime claim rejected - Authority did not accept applicant commenced employment before restaurant opened - Benefit of any doubt about wages paid given to applicant as respondent failed to keep proper record - Outstanding sum could represent alleged deductions - Deductions illegal as respondent never had written authority - Respondent conceded holiday pay owing - Arrears due and owing - Employment agreement included bonus provision - Agreement did not say discretionary - No bonus paid but applicant periodically given gifts and cash - Fair to treat these as discharging obligation to pay bonus - UNJUSTIFIED DISMISSAL - Constructive dismissal - Applicant alleged respondent breached duty by failing to renew work permit - Continued working for two days after permit expired then went to Police, alleging respondent would not return passport - Passport with respondent's solicitor to process renewal application - Personal grievance raised and applicant made clear did not want permit renewed - Evidence established respondent wanted employment to continue and started process for renewing permit - Authority accepted failure to initiate renewal earlier not solely (or perhaps at all) respondent's responsibility - No employment obligation breached - No constructive dismissal - Length of service 11 months 11 days - Chef
Result: Application dismissed (Unjustified dismissal) ; Application granted in part (Arrears of wages and holiday pay) ; Arrears of Wages ($4,947.67)(Salary) ; Arrears of holiday pay ($2,272.60)(Annual and statutory holidays) ; Costs reserved
McGovern v Tachikawa Forest Products
21 Aug 2006, A Dumbleton, AA 268/06, (6 pages)
UNJUSTIFIED DISMISSAL - Dismissal on medical grounds - Applicant unable to fully perform job due to injury - Respondent created position to allow for recovery - No time limit placed on continuation of employment - Union supplied list of jobs applicant could and could not do - Consideration given to list unsatisfactory and unfair - Reasonable employer would have ensured fully understood information - List, and respondent's consideration of it, within good faith provisions s4 Employment Relations Act 2000, particularly s4(1A) - While list emanated from applicant he should have had opportunity to comment on conclusions likely to bear on decision to terminate - Failure breach of good faith and contrary to actions of fair and reasonable employer - Dismissal unjustified - Remedies - Reinstatement to pre-injury position impracticable - Not open to reinstate applicant to position performing immediately before dismissal - If reinstated to that position, still open to respondent to conclude temporary position could no longer be held open - Colleagues' statement had no problem covering heavier work taken into account - No duty or obligation to survey employees about matter - Risks in conducting survey of that nature - Overall consideration was on information respondent had, likelihood applicant able to return to previous job not strong - Reinstatement declined - Applicant not totally unprepared for dismissal - Upset most by timing - Relevant to consider might still have been dismissed with fair process - Applicant could be compensated for loss of chance to have full input into decision-making, particularly in respect of list, but not for longer term loss of career - At most lost chance of remaining employed another two or three months - Neither respondent or union to fully bear blame for applicant being told decision second-hand through union - Length of service not specified - Saw doctor
Result: Application granted ; Compensation for humiliation etc ($3,000) ; Costs reserved
McLennan v Arthur Barnett Ltd
7 Sep 2006, P Cheyne, CA 135/06, (7 pages)
UNJUSTIFIED DISMISSAL - Alleged employment summarily terminated by phone message left by manager - Respondent claimed message did not amount to dismissal - Expired written employment agreement continued to apply - Applicant engaged as either part-time or flexi-time employee, not casual - Conflict developed between applicant and new employee ("D") - No reason to be critical of way respondent dealt with conflict - Authority did not accept applicant's claim respondent wanted her gone having appointed D - Applicant's request for leave without pay granted but plans changed and available to work - Respondent entitled to stick to original arrangement whether or not replacement worker organised - Applicant received message after being absent two months on leave and then sick - Message stated manager would let her know if work available - Manager claimed also said applicant should contact him when knew university timetable - Applicant argued while no actual words of dismissal, termination should be inferred from circumstances - Authority did not accept message amounted to termination of employment at respondent's initiative - On balance, manager's evidence of message preferred - Applicant to initiate discussion so parties could agree schedule of hours - Applicant's belief dismissed communicated to respondent - Reply stated applicant still employed but wrongly described her as casual employee - Prompt acceptance of respondent's invitation for further discussion could have easily sorted mistaken label - Parties needed to discuss applicant's availability for work in new year, as mentioned before applicant went on leave - No dismissal - Even if grievance, little scope for substantial remedies - Applicant's stress related illness not attributed to any wrongful action by respondent and stress claim explicitly not pursued - ARREARS OF HOLIDAY PAY - Applicant not paid for four statutory holidays while on annual leave because of mistaken view of nature of employment - Statutory days fell on otherwise working days for applicant - Arrears due and owing - Length of service seven years - Shop employee
Result: Application dismissed (Unjustified dismissal) ; Application granted (Arrears of holiday pay) ; Arrears of holiday pay (4 days)(Quantum to be determined by parties) ; Costs reserved
Scott v Quinns Fashions Ltd
24 Aug 2006, H Doyle, CA 128/06, (7 pages)
UNJUSTIFIED DISMISSAL - Constructive dismissal - Prohibition on publication of all medical evidence about applicant provided to Authority - Applicant placed on three month trial period to eventuate in permanent part-time employment - Applicant claimed unjustifiably constructively dismissed or alternatively unjustifiably disadvantaged - Applicant claimed resigned because treated unfairly by respondent - Resignation did not convey that applicant felt unfairly treated - BREACH OF CONTRACT - Applicant also claimed breach of express provision of employment agreement - Authority agreed applicant worked 7 days in a week for 11 of the 80 weeks was employed - Applicant often had to stay longer than rostered hours - Request to do extra hours and agreement - Applicant did not express how she felt about working longer hours - No objection by applicant to prepared rosters - Evidence did not support breach of contract - Applicant probably did not clearly articulate unhappiness during employment - No breach of contract - BREACH OF IMPLIED TERM - Respondent to take reasonable steps to provide applicant with safe workplace - Applicant did not convey a concern about the hours she was working - Authority to consider whether applicants conduct more than just inconsiderate conduct which caused unhappiness or resentment or whether conduct was dismissive or repudiatory - Authority concluded that respondent did not act unreasonably or fail to provide safe workplace - Length of service one year seven months - Sales adviser
Result: Application dismissed ; Costs reserved
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