| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2014] NZERA Christchurch 160 |
| Hearing date | 23 Sep 2014 |
| Determination date | 15 October 2014 |
| Member | D Appleton |
| Representation | P Yarrall, L Yukich ; C Patterson, A Reid |
| Location | Christchurch |
| Parties | Walker v Vulcan Steel Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – DISCRIMINATION – COUNTERCLAIM – PRACTICE AND PROCEDURE – Applicant claimed unjustifiably disadvantaged by final written warning, deduction from wages for time spent attending mediation, and letter referring to errors allegedly made by applicant – Applicant claimed discriminated against on ground of involvement with union activities – Whether applicant agreed not to challenge warning letter – Whether applicant forced to accept warning letter under duress – Applicant required to accept warning or be dismissed – Alcohol test – Safety sensitive – Zero tolerance policy – Suspension – Whether letter referring to errors not given to other employee (“C”) because C not union member – PENALTY – GOOD FAITH – Applicant sought penalty for respondent’s breach of good faith – Storeman and machine operator |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – DISCRIMINATION – COUNTERCLAIM – PRACTICE AND PROCEDURE: No statement to employees as to what “under the influence” meant. Practice of allowing employees to drink on site on Friday afternoons sent confusing message in absence of clear guidelines about implementation of alcohol policy. Not fair and reasonable for respondent to conclude applicant in breach of “zero tolerance” policy when respondent never articulated what “zero tolerance” policy meant in terms of residual alcohol in employee’s system. Ultimatum that applicant would be dismissed if did not accept final written warning not fair and reasonable. Applicant unjustifiably disadvantaged by final written warning. As threat of summary dismissal not lawful, applicant subject to coercion of will that rendered agreement not to challenge written warning voidable because of duress. Not unconscionable for applicant to withdraw from undertaking not to challenge written warning. Applicant not estopped from challenging written warning. No express or implied contractual right for applicant to be paid while attending mediation. Attendance at mediation did not constitute work. Duty of good faith applied to attempt by employer and employee to resolve ongoing employment relationship problem through mediation. Employer directed to attend mediation by Authority breached duty of good faith by withholding pay from employee for attending where mediation intended to resolve ongoing employment relationship problem. Respondent breached duty of good faith. Applicant unjustifiably disadvantaged by respondent’s decision to withhold two hours’ pay for attending mediation. Applicant not unjustifiably disadvantaged by not being paid for remainder of day after mediation meeting when applicant took day off without seeking leave. Letter to applicant setting out alleged errors designed to go on applicant’s file for possible future use against applicant. Not fair and reasonable to issue letter setting out alleged errors without first undertaking fair investigation into circumstances of errors. Applicant unjustifiably disadvantaged by letter referring to alleged errors. Applicant told that C not to be given similar letter because C not union member. Applicant suffered detriment by being singled out. C given letter only after applicant raised personal grievance. Disparity of treatment between applicant and C. Fact applicant raised grievance direct material ingredient in respondent issuing applicant with letter setting out alleged errors. Applicant discriminated against on ground of involvement with union activities. REMEDIES: No contributory conduct. Respondent to pay applicant reimbursement of lost wages, quantum to be determined. $8,000 compensation appropriate. Respondent to remove all copies of written warning and letter setting out alleged errors from applicant’s file and not to rely on documents in any further disciplinary action against applicant. Further investigation meeting required to determine if financial loss suffered by applicant arising from unjustified disadvantage grievance when respondent failed to award any profit share payment.;PENALTY – GOOD FAITH: Provision of letter to applicant setting out alleged errors deliberate and serious, but not sustained, breach of good faith. Provision of written warning not deliberate act of bad faith. Withholding of two hours’ pay for attending mediation one-off event. No penalty. |
| Result | Applications granted (unjustified disadvantage)(discrimination) ; Reimbursement of lost wages (quantum to be determined) ; Compensation for humiliation etc ($8,000) ; Orders made ; Applications dismissed (penalty – good faith)(counterclaim – practice and procedure) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s3(a);ERA s3(a)(v);ERA s4;ERA s4(1);ERA s4(1A);ERA s4(4);ERA s4(5);ERA s4A;ERA s54;ERA s103(1);ERA s103A;ERA s104;ERA s106;ERA s107;ERA s107(1)(d);ERA s107(1)(e);ERA s124;ERA Part 10;ERA s143;ERA s143(a);ERA s143(b);ERA s149;ERA s157;ERA s159(1);ERA s159(1A);ERA s159(2);ERA s159A;Wages Protection Act 1983 s4 |
| Cases Cited | BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266;Checkmate Precision Cutting Tools Ltd v Tomo [2013] NZEmpC 54;Harris v The Warehouse Ltd [2014] NZEmpC 188;King v Great Britain-China Centre [1992] ICR 516;McAlister v Air New Zealand Ltd [2009] ERNZ 410 ; [2010] 1 NZLR 153;Pao On v Lau Yiu Long [1980] AC 614;Pharmacy Care Systems Ltd v Attorney-General (2004) 2 NZCCLR 187;Postal Workers Union v New Zealand Post Ltd unreported, H Doyle, 29 February 2008, CA20/08;Shivas v Bank of New Zealand [1990] 2 NZLR 327;Woods v N J Ellingham & Co Ltd [1977] 1 NZLR 218 |
| Number of Pages | 40 |
| PDF File Link: | 2014_NZERA_Christchurch_160.pdf [pdf 1.4 MB] |