There seems to have been an extraordinary amount of activity in the Employment Relations Authority (ERA) and Employment Court of late. A quick snapshot of some recent cases include:
The recent Hammond v Polladio Holdings Ltd provides a useful reminder about being clear about what is being investigated, asking the right questions and ensuring that standard practices are clear.
In this case Hammond was accused of taking money out of a till, but denied it. She was shown CCTV footage of her taking the money out of the till but didn’t say anything in response. The ERA concluded that the Company should have investigated more thoroughly because she was young and inexperienced and there was confusion about the procedure for treating money left behind by customers. The ERA decided that the decision to dismiss was not what a fair or reasonable employer could have done in the circumstances and the employee was awarded lost wages and $7500 compensation for humiliation, loss of dignity and injury to feelings.
Employers must be conscious of their own actions and behaviour and how this impacts on their employees.
Robyn Marie Lloyd recently won her case for constructive dismissal against AV Services Limited despite being described as a "lippy'' administration manager by the ERA. In this case both the employer and employee used inappropriate language with each other in an extreme way. This culminated in the business owner calling his employee a “silly woman” and the employee laying a complaint about his behaviour with the police. The ERA concluded that from the managers own evidence, his behaviour towards his employee was unreasonable, even if he had been provoked into it. The case was decided in the employee’s favour as the ERA concluded that the employee had no choice but to resign because of the employer’s behaviour.
When investigating claims for bullying it is important to make sure the process is fair to all parties and follows any process the employer already has in place.
Claire Harvey won her case against The Home Centre Ltd (trading as Marlborough Mitre 10 Mega) after claiming bullying by her supervisor. A meeting was held to discuss the allegations but the supervisor who she complained about was present at that meeting. During the meeting the Supervisor made further inappropriate comments including saying that she could no longer work with the employee. The ERA determined that the company was responsible for the meeting where the employee was subject to "abuse" by the supervisor which made it "reasonably foreseeable that she would resign". The ERA also found that the employer had not complied with their own policy to make sure that any allegations of harassment would be carried out in a sensitive and confidential manner.
Finally, its not all doom and gloom for Employers. The Employment Court recently dismissed an appeal by a former Gisborne waka ama coach against his sacking. The dismissal was made after the coach appeared on Facebook at the secondary school championships smiling and giving the thumbs up when he was officially on sick leave. The coach had earlier applied for five days annual leave to attend the championships of which only three days was approved. The coach then went home mid-morning on the first day he had been declined leave, saying he was suffering from a long-standing calf injury. He was later that day seen driving out of town and then appeared in a photo on Facebook at the waka ama championship. Although a medical certificate was provided, in this case the Court held that it was “bland and uninformative” and the employer was rightly able to challenge the legitimacy of it based on other known information.