Cases of interest: August 2018

A summary of interesting or topical employment cases.

Aslam v Transportation Auckland Corporation Limited [2018] NZCA 301

The employee, a bus driver, was dismissed after an altercation with a passenger. The employee’s claim of unjustified dismissal was dismissed by the Employment Relations Authority and the Employment Court. The employee applied for leave to appeal to the Court of Appeal on questions of law.

The passenger had recorded the altercation. The recording was only provided to the employee after he had given his initial written response to the allegations. The Court of Appeal held there was a possible issue over whether the employer had appropriately raised its concerns before dismissing the employee: para [29]. However, this issue was confined to the parties and was not of general importance to the public: para [30]. The Court of Appeal also held that issues of law did not arise over the employee’s allegations of predetermination and a failure to adequately investigate: paras [31]-[35].

Leave to appeal was declined.

Link to case [PDF 279KB] (external link)

Ramkissoon v Commissioner of Police [2018] NZCA 304

The employee, a police officer, raised a series separate personal grievances. First, the employee raised a grievance when he was not appointed to a vacant position. The Employment Court upheld this grievance. Later, the employee resigned and claimed constructive dismissal. The Employment Court dismissed the constructive dismissal claim. The employee appealed to the Court of Appeal on two questions of law.

First, the employee argued that the Employment Court erred when it dismissed the unjustified dismissal claim by failing to take into account as a relevant consideration, and treating as merely background, the non-appointment events.

The Court of Appeal held that the non-appointment events did not form part of the constructive dismissal’s statement of claim: para [23]-[28]. This meant that the employer was not fully informed of the case against them: para [29]. Further, the evidence suggested that what drove the employee out was not the non-appointment but the way he was treated in rehabilitation: para [33]. The Court concluded that this argument was a thinly disguised attempt to challenge factual findings relating to a different grievance: para [37]. The Employment Court had not erred.

Second, the employee argued the applicable test for deciding whether the dismissal was justified was that used before the Employment Relations Amendment Act 2010. This test asks what the employer “should” have done rather than what it “could” have done. Some events which lead to the constructive dismissal had occurred before 1 April 2011, when the Employment Relations Amendment Act 2010 came into force.

The Court of Appeal held that termination of employment is an essential element of constructive dismissal and until this occurred the employee did not have an existing right: para [53]. Where a grievance relies on actions that occurred both before and after 1 April 2011, the correct approach is to consider the time at which the majority of the key actions occurred: para [56]. The Employment Court was correct to use the “could” test.

The appeal was dismissed.

Link to case [PDF 256KB] (external link)

Page last revised: 17 October 2018

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