Baillie v Chief Executive of Oranga Tamariki – Ministry for Children  NZEmpC 223
Employment Court – Personal grievance – Serious misconduct – Unjustified dismissal – Remedies
At issue was:
- Whether the employee was unjustifiably dismissed for serious misconduct.
- If so, what remedies should be awarded.
The employee worked as a residential youth worker at a secure residence for children and young persons.
The employee was filmed on CCTV appearing to have an altercation with a young person in their room. The CCTV recorded the incident without sound. The shift leader on duty at the time witnessed part of the incident.
The CCTV captured an image of the employee “briefly closing his hand and slightly pulling his arm back” (the hand image). The employer suspended the employee after reviewing the CCTV footage. The employer raised six allegations of potential serious misconduct and invited the employee to a disciplinary meeting. The employer concluded the employee had “formed a fist and was preparing to punch the young person”. The employer summarily dismissed the employee after finding most of the allegations were substantiated.
The employee raised a personal grievance for unjustified dismissal. The Employment Relations Authority (Authority) dismissed the claim. The employee challenged the determination in the Employment Court (Court).
The Court found the employee was unjustifiably dismissed. The Court took into account that
- The employer relied “almost exclusively” on the CCTV footage and drew inferences from it without adequately taking into account its deficiencies (see paras 53, 59).
- There was no basis for the employer to prefer its own interpretation of the CCTV footage over the employee’s explanations and the shift leader’s evidence (see para 78).
- The employer never interviewed the young person concerned during the investigation (see para 57).
- The employer rejected the employee’s explanations as “untruthful” when they were considered “plausible” (see para 58). The hand image, which appeared briefly on CCTV footage, only “lasted less than one second”. The employer had not fairly assessed the employee’s explanation that it was a reflex (see para 66).
- The employee was justified in restraining the young person according to the relevant regulations (see para 75).
The Court held that the employee was unjustifiably dismissed because the employer’s decision to summarily dismiss the employee, viewed objectively, was not what a fair and reasonable employer could have done in all the circumstances at the time of the dismissal (see paras 48, 82). The financial loss and harm the employee suffered, which “flowed entirely from the employer’s decision of dismissal”, were “significant” (see paras 94, 95, 98).
The Court awarded the employee the following remedies (see paras 91, 95, 109):
- reinstatement of the employee to his former position or one no less advantageous to him
- lost remuneration from the date of the dismissal until the date of the judgment
- $30,000 in compensation for humiliation and injury to feelings.
Labour Inspector v Samra Holdings Ltd t/a Te Puna Liquor Centre  NZEmpC 234
Employment Court – Breaches of minimum employment standards – Penalties – Banning orders
At issue was:
- Whether the Court should impose penalties on the four employer companies (the employers) and their director for breaches of minimum employment standards, and if so, for what amount.
- Whether the Court should impose banning orders against the employers and the director, and if so, for how long.
The four employers operated multiple liquor stores in Bay of Plenty. The employers all had the same director. A Labour Inspector investigation found that the employers had committed numerous breaches of minimum employment standards against four employees during a four-year period. The employers breached the Employment Relations Act (Act), the Holidays Act 2003, the Minimum Wages Act 1983 and the Wages Protection Act 1983. The breaches included:
- failing to pay the employees their minimum wages for all hours worked
- seeking unlawful premiums
- breaching employment record keeping requirements
- failing to consistently provide statutory leave and holiday entitlements
- failing to pay the statutory entitlements for working on public holidays
- failing to provide compliant individual employment agreements
In an earlier decision, the Court made declarations of breaches of minimum employment entitlements against the employers and the director:
The employers had since paid all the arrears owed to the employees.
In this decision, the Court considered whether to impose penalties and banning orders against the employers and the directors, for the same breaches. The Labour Inspector sought total penalties of approximately $3.2 million and banning orders against the employer and the director.
The Court held that the penalties against the employers and the director were warranted (see para 19). In determining the final amount, the Court explained:
- The case involved serious and sustained breaches of minimum employment standards over a period of four years. The evidence showed the breaches were “the result of a deliberate course of conduct” (see paras 108, 257).
- The case involved “systemic and deliberate exploitation of migrant workers”. The director “had showed no remorse or insight into his actions” (see paras 120, 254).
- The payment of arrears “was not evidence of contrition” (see para 119).
- The employer “obtained significant commercial benefit from their unlawful conduct and caused material loss and harm to the employees involved” (see paras 257).
- The record keeping failures “significantly contributed to the financial disadvantage suffered by the employees” (see para 115).
- Imposing banning orders was “appropriate” in light of the severity of the breaches and the risk of repetition. Prospective employees should be protected from the employers and the director (see para 254).
The Court imposed:
- $1,544,075.00 in penalties on the employers and the director (see paras 220, 259)
- two-year banning orders against the employers (see paras 256, 261)
- a three-year banning order against the director (see paras 256, 261).
Ong v Comsol (Computer Solutions) Ltd  NZERA 667
Employment Relations Authority – Bonus payment – Wage increase – Arrears – Remedies
At issue was:
- Whether the employer owed a bonus payment and wage increase to the employee.
- If so, what remedies should be awarded to the employee.
The employer had two directors, K and L. K took care of “governance”; L had the responsibility for day-to-day operations, including tasks relating to staffing, customers and contractors. The employee was hired by and reported to L.
L wrote to the employee informing him of a $40,000 bonus and a 5% pay rise as a “cost-of-living raise”. The letter had the company letterhead and L signed the letter as “Managing Director”.
K disagreed with the bonus and pay rise. K disputed L’s ability to authorise them without gaining K’s prior consent. K claimed the company constitution required all significant payments to be approved by both directors. Since K did not agree to the bonus award and wage increase, L could not commit to these payments alone. The employer never paid the bonus or the wage increase.
The employee lodged a claim in the Authority and sought:
- payment of the bonus and wage increase
- interest on the amounts owing
The Authority found that the employer entered into “a binding promise” to the employee on the payments of the bonus and pay rise, as set out explicitly in the letter signed by L, on the company letterhead (see paras 24, 32). The Authority took into account that:
- the employee accepted and acted on the promises and performed additional duties and made an extra effort in response to them. Such promises amounted to a “binding contractual agreement of the employer in the employment relationship, which had the special characteristics of being a fiduciary relationship, and with the mutual statutory obligations of good faith” (see para 32).
- The employer could not automatically avoid its obligations by arguing that the promise was entered in a manner that did not comply with the company constitution or its own internal requirements (see paras 31, 33, 34).
- The employee “had no actual knowledge” of the specific provision which K relied on to prevent L from properly awarding her bonus and pay rise (see para 36).
- K also never communicated his views to the employee that L was not “authorised” to make decisions around staff payments without his consent (see para 39).
The Authority concluded that the employer owed the employee the bonus payment and the 5% wage increase. The Authority ordered the employer to pay the employee the $40,000 bonus payment, wage arrears, interest, and $5,000 compensation for hurt and humiliation (see paras 42, 56).
Tertiary Education Union v Vice Chancellor of Auckland University of Technology  NZERA 676
Employment Relations Authority – Redundancies – Breaches of collective employment agreement – Compliance order
At issue was:
- Whether the employer breached Part 10 of the Collective Employment Agreement (CEA) when it restructured the organisation.
- If so, whether the Authority should issue a compliance order requiring the employer to remedy the breaches.
The employer, a university, planned to undertake a significant organisational restructuring. The employer concluded the change would affect some 170 academic positions. Within a week, the employer made three calls for voluntary severance. The first call was made to all employees whose positions were within the scope of proposed changes, without referencing their names and positions. The second call did not identify specific positions. The third call was made to the named employees whose positions were identified as potentially surplus to requirements. The three calls resulted in 80 positions being accepted for voluntary severance. The positions of those employees who either did not apply for voluntary severance, or whose applications for severance were not accepted, were to be disestablished. The employer then sent out severance letters, terminating the affected employees’ employment with two-month’s notice.
The union contended that the employer breached the relevant provisions under Part 10 of the CEA. Part 10 of the CEA set out the process that the employer must follow in any organisational change resulting in staff surpluses. Clause 10.3.2(b) required the employer to determine the process and/or criteria for deciding the ‘specific positions’ to be declared for surplus. Clause 10.3.3(i) required the employer to call for voluntary severance from the potentially affected employees “once specific positions have been identified as surplus”. The union alleged that the employer failed to comply with these provisions. The union applied to the Authority for a compliance order.
The Authority concluded the employer breached clauses 10.3.2(b) and 10.3.3(i) (para 31, 39). It found that the employer should have established and applied selection criteria to identify “specific positions” that were surplus; and the names of the employees holding those positions (paras 29, 30). Once the employer identified the relevant employees, those employees should have been given the opportunity to apply for voluntary severance. However, the employer offered voluntary severance before identifying particular surplus positions and before individual employees knew they were selected for severance (see para 33). In deciding to call for voluntary severance without first identifying potentially affected employees, the employer had breached Part 10 of the CEA (see para 39).
The Authority ordered the employer to suspend or withdraw the termination notice (see para 45). The Authority gave the parties three days to consider the determination and advise whether a compliance order was required (see para 55).
Three days later, the Authority issued a compliance order to require the employer to remedy the breaches.
Harwood v Whangamata Golf Club Inc  NZERA 693
Employment Relations Authority – Personal grievance – Unjustified disadvantage – Unjustified dismissal – Remedies
At issue was:
- Whether the employer unjustifiably dismissed the employee for failing to comply with a Covid Vaccination Certificate (external link) (CVC mandate) and the employer’s vaccination policy.
- Whether the employer disadvantaged the employee by failing to keep the employee safe at work.
- If so, what remedies should be awarded.
The employee worked as the Director of Golf for a golf club. The role included working in the employer’s retail shop.
The employer met with workers and proposed implementing a “no jab, no play” policy. The policy required both staff and members of the club to have full COVID-19 vaccinations to access the club premises.
The employee completed a WorkSafe NZ COVID-19 assessment at the employer’s request. While the employee rated his risk as low/medium, the employer rated him as high risk. The employee wrote to the employer to express concerns about the COVID-19 vaccination and asked the employer to revoke the vaccination request.
The employer replied to the employee reiterating the requirement for full vaccination to access the employer’s pro shop and club house. The employer required the employee to show evidence of full vaccination by Christmas Day, or his employment would be terminated. The employer also stated that redeployment was unlikely because the vaccination policy applied to all staff in all positions.
The employer later wrote to the employee again saying that due to the rolling out of the CVC mandate, he would receive four weeks’ notice of dismissal if he remained unvaccinated by a specific date. As the employee did not comply with that notice, the employer gave the employee the four-week notice for dismissal for failing to comply with the vaccination policy.
A week later, the employer sent another letter to the employee dismissing him with notice. The letter explained there had been a change in the CVC mandate, which meant the employee was no longer required to be vaccinated. Despite this, the employer stated it was keeping its vaccination policy based on a survey of members and its own risk assessment.
The employee raised a personal grievance for unjustified dismissal and disadvantage with the employer.
The Authority concluded the employee was unjustifiably dismissed (see para 45). The Authority found that the employer had not discharged the statutory requirements to give reasonable written notice of the specified date for vaccination, as set out in Clause 3, Schedule 3A of the Employment Relations Act 2000 (external link) (paras 41–44).
The Authority awarded the employee two-month lost remuneration and $15,000 in compensation (see para 52).