| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2013] NZERA Christchurch 35 |
| Hearing date | 20 Dec 2012 |
| Determination date | 19 February 2013 |
| Member | D Appleton |
| Representation | L Acland ; K Warrender |
| Location | Nelson |
| Parties | Nelson v Katavich and Anor |
| Other Parties | Haldeman LLC |
| Summary | PRACTICE AND PROCEDURE – Identity of employer – Authority found applicant employed by second respondent - RAISING PERSONAL GRIEVANCE – Whether grievance raised within 90 days - UNJUSTIFIED DISADVANTAGE – Authority satisfied applicant did raise grievance in relation to alleged demotion – Found applicant demoted and first respondent (“K”) removed furniture from applicant’s office as punishment - Applicant unjustifiably disadvantaged by K removing some of applicant’s duties – Found no jurisdiction to consider claim of unjustified disadvantage in relation to applicant’s suspension – REMEDIES - $2,000 compensation appropriate - UNJUSTIFIED DISMISSAL – Serious Misconduct – Applicant claimed unjustifiably dismissed by respondent – Respondents claimed applicant harboured neo-Nazi views placing respondents’ reputation at risk and gave false information when applied for role - Authority noted did not believe applicant harboured neo-Nazi views – Found applicant’s use of email address did not create genuine material reputational risk to respondent - Found applicant’s evidence had not given false information when applied for position credible – Found claims applicant had neo-Nazi views and gave false information when applied for role used to justify dismissal predetermined by K – Found fair and reasonable employer would not have dismissed applicant in circumstances - Dismissal unjustified – REMEDIES - No contributory conduct - $15,000 compensation appropriate - Second respondent to pay applicant $13,469 reimbursement of lost wages – ARREARS OF WAGES AND HOLIDAY PAY – Applicant sought arrears of wages and holiday pay – Found applicant’s claims for unpaid holiday pay legitimate and second respondent made unlawful deductions from applicant’s wages - Second respondent to pay applicant $2,248 arrears of wages and $3,073 arrears of holiday pay – PENALTY – Applicant sought penalties for respondents’ alleged breaches of good faith obligations – Found not just to address applicant’s late claim for penalties – Found K’s actions did not go far enough to amount to obstruction or delay of Authority’s investigation – No penalty - COUNTERCLAIM – RECOVERY OF MONIES – PENALTY – Respondents sought recovery of bonus payment and penalty against applicant’s representative – Found second respondent’s actions repudiatory and could not seek recovery of bonus payment previously paid to applicant – Found not just to consider respondents’ late claim for penalty – No penalty - Writer and Researcher |
| Abstract | Applicant employed as writer and researcher, parties disputed identity of applicant’s employer. Applicant claimed unjustifiably disadvantaged by demotion and suspension before unjustifiably dismissed. Applicant claimed respondents had withheld wages and sought arrears of holiday pay. Applicant sought penalties for respondents’ alleged breaches of good faith and first respondent’s (“K”) alleged obstruction of Authority investigation. Respondents counterclaimed for recovery of monies and sought penalty against applicant’s representative for allegedly advising applicant not to co-operate with respondent’s disciplinary investigation. Applicant claimed did not have defined role during employment and carried out tasks as requested by first respondent. Applicant claimed was required to create false blogs using multiple email accounts for purpose of influencing search engine results. Applicant moved to another town as applicant’s role extended to look after another office. K advised other employees applicant would be promoted to manager. Applicant asked to sign new employment agreement (“EA”) in second respondent’s name. EA included clause applicant would receive one-off payment as ‘encouragement’ to work from new office and EA stated if employment terminated during first year, pro-rata deduction of sum could be made from applicant’s wages. Applicant attended barbeque outside work hours hosted by previous employee (“L”), K not invited to barbeque. Applicant claimed when returned to work following week, discovered furniture had been removed from office and desk turned around to face wall. Applicant claimed everyone talking about state of applicant’s office humiliating. K sent applicant email asking about barbeque and instructed applicant to compile list of all employees who had attended. K claimed applicant had failed to notify K of barbeque when should have been “abundantly clear” that, as barbeque hosted by “disgruntled staff member,” venue and host for company event inappropriate. K claimed applicant no longer suitable for management of staff and instructed applicant to focus on project work. Applicant claimed unaware L had not left employment on amicable terms. K introduced policy employees should be working at allocated desk unless on designated break and employees should contact co-workers by phone rather than interrupting their work if needed to discuss work-related matter (“new policy”). K claimed applicant interrupting other employees when employees not on designated breaks. K requested applicant attend disciplinary meeting to discuss misconduct and claimed applicant had breached new policy. K raised further allegations against applicant before meeting that applicant harboured neo-Nazi views damaging second respondent’s reputation and applicant had given false information when applied for role. Applicant had previously created email address and password for blogging purposes with what second respondent claimed were neo-Nazi references. Applicant suspended. Applicant claimed created email address as more conventional email addresses had been used and needed to create unusual sequence. Applicant dismissed after disciplinary meeting. Applicant claimed employed by K personally. K denied applicant ever employed as manager and applicant’s role to assist with management of staff as required. K claimed had previously been subjected to negative public attention because of untrue statements made about second respondent’s predecessor therefore very sensitive to risk applicant’s alleged neo-Nazi views had brought second respondent into disrepute. Applicant claimed respondents’ conduct after dismissal, including second respondent’s claim in Disputes Tribunal, K’s contact with applicant’s subsequent employer that K would “strongly dissuade” any employer from employing applicant, K sending third party to obtain information about applicant and applicant’s partner and respondents’ High Court claims seeking significant damages against applicant, increased applicant’s distress and humiliation. Respondents claimed after dismissal applicant made very insulting comments about K.;AUTHORITY FOUND –;PRACTICE AND PROCEDURE: Although K made all employment directions, no strong evidence K ever applicant’s employer personally. Applicant employed by second respondent.;RAISING PERSONAL GRIEVANCE - UNJUSTIFIED DISADVANTAGE: First needed to consider whether applicant had raised personal grievance had been unjustifiably disadvantaged by alleged demotion. Satisfied applicant did raise grievance. Applicant did carry out managerial role and K unilaterally withdrew some tasks from applicant. Applicant demoted and probable K removed furniture from applicant’s office as punishment. K’s actions not those of fair and reasonable employer. Applicant unjustifiably disadvantaged by K removing some of applicant’s duties in circumstances. No mention of applicant’s claim unjustifiably disadvantaged by suspension in statement of problem and no application made to raise grievance out of time. Authority did not have jurisdiction to consider claim. REMEDIES: Applicant stated did not like being manager however manner applicant demoted did cause applicant humiliation. $2,000 compensation appropriate.;UNJUSTIFIED DISMISSAL: Possibility connection could be made between email address used by applicant and second respondent but K had previously discovered email address and not taken disciplinary action against applicant until two months later. Not credible K only concluded email address was reputational risk to second respondent two months later. Alternatively, fair and reasonable employer would not have disciplined applicant two months after discovered email address. Authority did not believe applicant harboured neo-Nazi views. Applicant’s evidence had not given false information when applied for position credible. Claims applicant had neo-Nazi views and gave false information when applied for role used to justify dismissal already predetermined by K. Applicant’s use of email address did not create genuine material reputational risk although possibly ill-judged. Applicant did not admit to fabricating parts of resume. Applicant did not commit serious misconduct. Fair and reasonable employer would not have dismissed applicant in circumstances. Dismissal unjustified. REMEDIES: No contributory conduct. K’s conduct after dismissal deliberate and intended to damage applicant’s reputation. Third party’s contact with applicant and applicant’s partner intended to put pressure on applicant to withdraw claim before Authority. Respondents did not provide evidence very insulting comments about K were made by applicant. K’s contact with applicant’s subsequent employer that K would “strongly dissuade” any employer from employing applicant and K sending third party to obtain information about applicant and applicant’s partner significantly aggravated applicant’s humiliation and injury to feelings. Due to respondents’ conduct after dismissal, doubling of compensation awarded for respondents’ conduct before dismissal appropriate. $15,000 compensation appropriate. Second respondent to pay applicant $13,469 reimbursement of lost wages.;ARREARS OF WAGES AND HOLIDAY PAY: Applicant’s claims for unpaid holiday pay legitimate and second respondent made unlawful deductions from applicant’s wages. Second respondent to pay applicant $2,248 arrears of wages and $3,073 arrears of holiday pay.;PENALTY: Not just to address applicant’s late claim for penalties. K’s actions did not go far enough to amount to obstruction or delay of Authority’s investigation. No penalty.;COUNTERCLAIM – RECOVERY OF MONIES - PENALTY: As applicant did not commit serious misconduct, second respondent’s failure to give applicant two weeks’ notice of termination breached EA. Second respondent’s actions repudiatory and could not subsequently seek recovery of bonus previously paid to applicant. Alternatively, equitable that bonus payment could only be recovered if applicant’s dismissal lawful. Not just to consider respondents’ late claim for penalty. No penalty. |
| Result | Applications granted (raising personal grievance, unjustified disadvantage, unjustified dismissal, arrears of wages and holiday pay) ; Compensation for humiliation etc ($2,000)(unjustified disadvantage) ; Compensation for humiliation etc ($15,000)(unjustified dismissal) ; Reimbursement of lost wages ($13,469.76) ; Arrears of wages ($2,248.48) ; Arrears of holiday pay ($3,073.50) ; Applications dismissed (penalty and counterclaims – recovery of monies and penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Companies Act 1993 Part 18;Companies Act 1993 s333;Companies Act 1993 s334;Companies Act 1993 s335;Companies Act 1993 s338;Companies Act 1993 s340;ERA s103A;ERA s124;ERA s128(2);ERA s134A;ERA s134(2);Financial Reporting Act 1993 s19 |
| Cases Cited | Colosimo v Parker (2007) 8 NZELC 98,622;General Billposting Company Ltd v Atkinson [1909] AC 118;Mehta v Elliot (Labour Inspector) [2003] 1 ERNZ 451;Pottinger v Kelly Services (New Zealand) Ltd [2012] NZEmpC 101;Service Workers’ Union of Aotearoa v Chan [1991] 3 ERNZ 15 |
| Number of Pages | 37 |
| PDF File Link: | 2013_NZERA_Christchurch_35.pdf [pdf 433 KB] |