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Employment Today, HR Solutions - Thomson Reuters

Employment Today, HR Solutions - Thomson Reuters


Case notes

HARASSMENT LEADS TO DISMISSAL

This case was a challenge by a former Corrections employee against a decision of the Employment Relations Authority that his dismissal for serious misconduct was justified.

The Corrections officer had been investigated for serious misconduct involving harassment of two other Corrections staff who had had relationships with Mr X. A trespass notice was issued on Mr X and a police safety order was also issued. Mr X then posted a message and photos to Facebook about the two women which they both found upsetting. Mr X was hospitalised shortly after that over concerns about his health and he later attempted suicide.

Based on a complaint from one of the women, Corrections decided to formally investigate Mr X’s actions. A medical assessment was undertaken and he was found to know the difference between right and wrong. The Department eventually dismissed Mr X for serious misconduct.

The basis of the challenge to the finding of unjustified dismissal was that the conduct complained about was outside the workplace, the investigation was flawed, there was disparity of treatment and that the s 103A test was not satisfied.

The Court held that Mr X’s behaviour brought his private life firmly into the workplace and had brought the Department into disrepute. The Department was also entitled to investigate because of its concerns about compliance with its social media policy that warned of disciplinary action if any material that was harassing was published online.

The criticisms by Mr X of the investigation were rebuffed by the Court when it said that the Department was concerned about a senior employee who engaged in behaviour which resulted in steps being taken by two other Corrections officers to protect themselves. The Court found no disparity of treatment in the investigation and as to the test of justification in s 103A, it said the evidence against Mr X was overwhelming and largely uncontested. Mr X’s challenge was dismissed.

X v The Chief Executive of the Department of Corrections [2018] NZEmpC 106

GOOD FAITH ORDER TO PROVIDE CRANE DRIVER TRAINING

Lyttelton Port Company Ltd has been given a “good faith order” by the Employment Relations Authority that requires the company to train Mr Pender, one of their cargo handlers, as a crane driver.

In April 2017, the company advertised internally for cargo handlers who were willing to be trained as crane drivers within one of the four cargo handling groups (A to D). Each group had approximately 40 cargo handlers and between 10 and 12 of these performed crane driver duties within their respective group. The crane drivers received an allowance of $2.06 per hour.

After an unsuccessful application in 2013, Mr Pender applied again in 2017 in response to the company’s advertisement. The advertisement stated that some successful applicants may have to change the group they work in and they were asked to state their preferred group. It appeared that 12 crane drivers were needed, but only two were required in Group B, which was Mr Pender’s group.

A training assessment then took place and Mr Pender achieved a score of 80.93 percent, putting him sixth overall when ranked across all the groups. He was later informed by the trainer that cargo handlers would not be able to change groups to secure a crane driver training opportunity.

Mr Pender was told a couple of months later that he would not be offered training as a crane driver because he was ranked fourth in Group B (with two drivers required). After raising his concern about this with his union and the employer, he brought a personal grievance for unjustified disadvantage when the issue was not resolved. He claimed that the collective agreement (CA) supported his argument where the coverage clause listed the functions of a cargo handler as including driving cranes. The CA also provided at cl 1.5 that the purpose of the CA was “… to afford each employee the same … opportunities for training, promotion and transfer as are made available for other employees of the same or substantially similar qualifications, experience or skills employed in the same or substantially similar circumstances.”

The Authority held that while Mr Pender was given an opportunity for training, he was not treated the same as other employees because he was not trained as a crane driver when other cargo handlers with lower scores in the initial assessment process were. Further, the failure by Lyttelton to train Mr Pender meant he was not given an opportunity to “increase [his] skill levels and job satisfaction” in contravention of cl 5.4 of the CA.

Lyttelton relied on “employer discretion” on whether to transfer a cargo handler to another group and it said this should not be interfered with where Mr Pender had been treated fairly. The Authority said the problem was that Mr Pender was not treated fairly. It found that clauses 1.5 and 5.4 of the CA were conditions of Mr Pender’s employment and they had been breached without justification by Lyttelton to his disadvantage.

Lyttelton also breached its good faith obligations by conduct that misled or was likely to mislead Mr Pender. No attempt was made by the company to inform him of the revised condition that applicants would not be able to change groups. The company knew of Mr Pender’s previous attempt to become a crane driver. If it wished to change the criteria, as was arguably its right, it should have, consistent with its obligations under s 4(1A)(b) of the Employment Relations Act 2000 (the Act), been open and communicative with all cargo handlers about this.

The Authority considered that a financial penalty would not actually remedy the breach of good faith. It examined other options available to it and, relying on s 162 of the Act that allowed the Authority to make order as if it were a contract, it made a good faith order which it said was akin to a mandatory injunction remedying an established breach.

The Authority ordered the employer to train Mr Pender as a crane driver.

Pender v Lyttelton Port Company Ltd [2018] NZERA Christchurch 137

EMPLOYER FAILS TO PROTECT EMPLOYEE FROM FORESEEABLE RISK TO MENTAL HEALTH

A corrections officer who was assaulted by a prisoner in 2012 has succeeded in a claim for unjustified disadvantage on the basis that Corrections failed to provide him with a safe workplace.

The officer had been alone with a group of prisoners who had become agitated. He took steps to calm the situation, but a short while later one prisoner violently assaulted him and he was hospitalised. He returned to work about nine days later and was given control room duties. He later went on a pre-planned holiday, but when he returned to work the consequences of the assault came to the fore. The three-year period between the assault and his retirement on medical incapacity grounds were marked by extended periods of leave, complaints about his behaviour at work and a claim from him of a lack of support from Corrections.

The officer later claimed unjustifiably dismissal, unjustifiable disadvantage and that Corrections had failed to meet an implied contractual and statutory duty to provide a safe workplace. The disadvantage claim was based a failure to provide a safe workplace in respect of the assault itself and failing to provide a safe workplace in respect to the officer’s return to work.

The Employment Relations Authority held that Corrections had an obligation to take all reasonable practical steps to maintain a safe workplace. In assessing whether this was done, Corrections needed to have protected its employees against risks of harm that were foreseeable and taken steps proportionate to the known risk.

The officer claimed that Corrections failed to take all reasonably practical steps to prevent a foreseeable risk of harm, being the assault, when it did not have the minimum staff numbers required on duty, according to the relevant Corrections policies and guides. In short, the Authority found that Corrections did not meet the required staffing ratios for Corrections Officers in the prison wing where, and at the time, the officer was assaulted. The officer was alone on the prison wing when there should have been another officer with him.

The Authority held that an officer suffering adverse psychological effects from an assault at work and then returning to work following an assault are both foreseeable risks. Corrections should have taken reasonably practical steps to protect the officer’s mental health on his return to work in the short term, addressed the officer’s work performance and behaviour in the period between the assault and retirement and, lastly, protected his mental health in the way it advised the officer that ACC cover had been refused for the PTSD the officer suffered because of the assault.

With respect to the officer’s return to work in the short term, the Authority summarised Correction’s failings as not debriefing the officer on his return to work, not providing a return to work plan, not offering counselling—particularly, not following its own policy on specialist counselling in the event of traumatic incidents. Corrections did not report the assault and no assessment for counselling was ever completed. In addition, there was no direct follow up with the officer when he returned from his leave period.

With respect to the officer’s work performance and behaviour, the Authority found there were a number of signs he was not coping with his return to work in the medium term. He used an excessive amount of leave, he responded disproportionately to relatively straightforward events that occurred at work, he complained about his work-life balance and sought better hours and shifts, and he raised the issue of a lack of support from Corrections after the assault.

Corrections suggested that the officer’s behaviour was not out of the ordinary for him and that he was a very private person and a somewhat withdrawn individual prone to mood swings. The Authority did not accept these arguments and held that while the officer had an onus on him to protect his own health and safety at work, this did not absolve Corrections from doing what was reasonably practicable. It should have intervened when the officer was taking excessive leave, when he reacted adversely at work or when he raised the issue of a lack of support from Corrections.

The Authority held that when Corrections did act by requiring the officer to be assessed by an occupational specialist, it was in fact the first step in Corrections’ procedure for compulsory medical retirement. Corrections also should have done more to protect the officer from an adverse response to the news that it (as an ACC accredited employer) was denying him cover for the post traumatic stress order he had acquired. The Authority determined that Corrections failed to take reasonably practical steps, in the circumstances, to protect the officer from a foreseeable risk of harm, being any psychological impact of the assault and his subsequent return to work.

The unjustified dismissal claim was dismissed because the officer accepted medical retirement and while the underlying reasons for the dismissal were caused by Corrections, this was dealt with in the unjustified disadvantage claim.

The Authority ordered Corrections to pay compensation of $30,000 for humiliation, loss of dignity, and injury to the feelings and $26,061.54 for lost wages.

JCE v The Chief Executive of the Department of Corrections [2018] NZERA Christchurch 130

UNINTENTIONAL CONSTRUCTIVE DISMISSAL

Talley’s Group Ltd (Talley’s) employed a chief engineer on a deep-sea fishing vessel but was not happy with his work performance.

Mr Lynch was given a letter from Talley’s making allegations about work performance. It proposed that another chief engineer take over his role on the vessel and that Mr Lynch be assigned elsewhere in the fleet. The letter asked him to fly back to Nelson to meet with a senior manager and it stated that dismissal was not a potential outcome of the meeting. However, another manager then asked Mr Lynch to stay on the vessel to help with the work and told him that the meeting with the senior manager would be rescheduled.

When he later returned to Nelson, Mr Lynch was not informed that the senior manager was overseas, or the date of his return or that the meeting would be rescheduled when the manager returned, although the company claimed he was told this in an informal meeting before his flight.

A new chief engineer was sent to the vessel to take over the role and the vessel left port the next day.

When the Mr Lynch was contacted a week later to arrange the meeting, he responded that he did not work for Talley’s anymore and he wanted to leave it at that. It was explained to him that he was not dismissed, but Mr Lynch said it was clear that he had been moved on by Talley’s.

Mr Lynch claimed unjustified dismissal in the Employment Relations Authority, but Talley’s claimed he had abandoned his employment. Mr Lynch submitted that when Talley’s cancelled the meeting with the senior manager, then sent him home without rescheduling the meeting and put the “proposed” replacement engineer onto the trip he expected to be sailing on, along with the other chief engineer, he considered he had been dismissed. Talley’s call a week later saying he had not been dismissed was too late.

The Authority held that Talley’s was not communicative enough—sending Mr Lynch home led him to believe he had been dismissed. The Authority also held that Talley’s did not intentionally dismiss Mr Lynch, but it was a constructive dismissal. Talley’s actions were without reasonable cause and damaged the employment relationship so much that it should have been foreseeable that Mr Lynch might resign. Talley’s was ordered to pay $14,000 in compensation and $19,466.62 in lost wages.

Lynch v Talley’s Group Ltd [2018] NZERA Christchurch 127

ANN BUTLER

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