Wrongful Dismissal (VTNZ/Kate Spake)

Advocates: Warwick Reid & Rachel Rolston

A Tauranga client of the Advocacy Network working at a warrant of fitness centre was advised to "get your udders out" by the boss. The Employment Relations Authority was told he also pulled her ponytail and pinched her back. Then, he defended his actions by motioning as about to clasp her breasts, saying: "It's not like I grabbed your ..."

When she told management at national car-testing firm VTNZ, they failed to adequately address her complaint, the ERA has found. The boss who harassed her has held on to his job, and VTNZ spokeswoman Melissa Jordan said this week: "From our position we are incredibly surprised by the finding so we are now considering our right of appeal."

Quite frankly, I'm kind of surprised that VTNZ is surprised.

Rachel Larmer, Authority member for the Employment Relations Authority has ordered VTNZ to pay a former employee $10,500 distress compensation and more than eight months' lost earnings for wrongly dismissing her from a Mount Maunganui VTNZ station. She was awarded $15,000 and 12 months wages, however this was reduced by contribution due to failing to clearly communicate that she did not believe she was well enough to return to work, and failing to follow the proper reporting procedures for her sickness absence.

The ERA found in favour of Katherine Spake that she had been unjustifiably dismissed in April last year from her job as a customer services representative at the Hewletts Rd station. The finding tells of a culture in which smutty comments "full of innuendo" were made, a male boss touched Ms Spake's hair and back, and made references to "udders" and gestures towards her breasts.

Kate increasingly suffered from stress, anxiety and sleep deprivation. She lodged an internal complaint, which the authority said VTNZ failed to adequately address. "I should have been able to rely on VTNZ to have dealt with Mr Johnston's inappropriate behaviour but because of a situation with a former colleague and her dismissal, and the boss in question being moved sideways, I had no trust in the HR department," she wrote.

Kate had taken sick leave on the advice of doctors, but VTNZ demanded she return to work. When she refused, she was sacked.

Kate's ERA finding is a great victory for harassed women who endured chauvinism in the same vein as that of Kelly Tanner last year. In fact initially, it was Kelly Tanner herself who fiercely supported Kate in standing up for herself in a classic 'David and Goliath' situation.

"Cases of reimbursement for economic loss as a result of psychological injury are exceedingly rare in New Zealand, especially in the private sector" according to Warwick Reid of Reid Legal Services, who was the employment advocate who has taken both of these cases before the ERA after being engaged by Tauranga Advocacy Network on behalf of the clients.

Mr Reid made clear the duties owed to employee's in cases such as this, and they should serve as a warning to all employers. Simply put, they are:
  (a) An employer should comply with the express terms of the employment contract and not dismiss an employee other than in accordance with its terms.
  (b) An employer should not dismiss an employee other than by way of a procedure that is fair and reasonable.
  (c) An employer sh ould be a good and considerate employer, especially in dealing with an employees concerns in relation to workplace health and safety.
  (d) An employer should provide a working environment and management processes that are reasonable so that undue stress will not be caused to the employee.

In Kate's case, the use of the abandonment clause in her contract was used in breach of the employer’s good faith obligations and was simply a contrived legal means of dismissing an employee that was wrongly perceived by the employer to be a troublemaker. 

The dismissal was unjustified and made a significant contribution to the downhill slide towards the depression described by the two psychologists who gave evidence. The way Kate was treated while she was at work, and the manner in which she was dismissed has destroyed the quality of her life throughout the many months of this case and will continue to do so for some time.

VTNZ has until March 2 to appeal the decision.



Rachel Rolston - Advocate
Sources: NZ Herald, Bay of Plenty Times, Employment Relations Authority, Reid Legal Services

Tauranga Advocacy Network is an 'umbrella' for advocacy throughout the Bay of Plenty. With advocates taking our clients through disciplinary processes, personal grievances and mediation, and employment law specialists appearing at the ERA, employees have access to a wide range of services. We will provide an initial appointment free of charge to allow employees to find out if they should or could raise a grievance, and we are more than happy to help out to reach fair and amicable resolutions before they become time-consuming and costly for employers. We are always looking for volunteers to support employees, and welcome your call to find out more if you are considering advocacy as a career or if you are currently studying HR or law and would like some hand-on experience in employment matters.

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Wrongful dismissal - in so many ways!

Recently, a client came into my office and as so many do proceeded to tell me he'd been sacked. That he'd been sacked didn't surprise me - it wa the way his employment had been terminated that got my attention.

It seems he'd been working for a couple of months when his employer had started to run into money trouble. Rather than simply explain to the employee that  things were tight financially and they'd have to let him go - this boss decided to play a rather nasty game of 'let's change the contract while he's not looking!'

Our guy had kept a copy of the contract as it had originally been given to him, so he had a reference of what the contract contained. Despite asking for a signed copy, the employee had never received one, so having the emailed version turned out to be vitally important.

But the upshot of it was, the boss had significantly altered the contract, adding a Trial Period clause that hadn't previously existed! She had gone to the Word document of the contract, entered a few lines of new clause, and reprinted the page - then simply inserted it into the existing contract so the signatures remained in place. Clever! But not good enough...

Our cunning but incredibly foolish boss had failed to notice a couple of really important things in the 'new' contract:
  1) That her changes had been added in a totally different font to the rest of the contract - different size, different font style... stood out like dogs bollocks!
  2) That when she added the new lines, it shifted everything else further down the page, meaning that the last lines of the page were pushed right out of the new contract version!
  3) That her changes had created a whole new page to the document, and she'd not thought to alter the page numbering... so page 2/12 became page 2/13, followed by page 3/12, page 4/12, etc!

So now we're looking at breach of contract, unjustified disadvantage and unjustified dismissal - and it cost the employer thousands of dollars that would have been better spent on the business.

Ok, so now you're thinking "How bloody stupid of them!" and I'd have to agree. But despite being remarkably stupid, this horribly flawed plan to dismiss our client raises some really important factors to note for employee's.

Firstly, sign two copies of the contract, and get your boss to sign both of them too. And initial every page. Don't give both copies to your employer - retain one for your own records.

Secondly, NEVER sign a contract unless you know exactly what it contains, and what each clause means for you. I don't know how many times I've asked clients if they knew a detrimental clause was in the contract, only to be told they didn't really read it first, they just figured it would be OK.

And thirdly, if your boss seems hesitant to give you copies of the records of your employment or personal file - get suspicious! After the second time you have to ask for it and it isn't forthcoming - you can assume your boss is hiding something and get insistent.

Last but not least, if it still isn't forthcoming - come and see me. I'll get it for you - if it exists.

Bosses are getting desperate. It's a sign of the economic times. The last piece of advice has to be for them:

$500 spent on getting good legal advice now, could save you thousands in the long run.

Be a smart boss, not a smart-ass!

Advocate: Rachel Rolston

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In the heat of the moment - shut up, count to ten, walk away!

Want to know how to really annoy your employee and make him pursue you to the ends of the earth to get justice? It's simple - be unreasonable, be unfair, then when he raises his voice to you in anger - sack him!

Sounds easy enough doesn't it? Actually, it's not. If an employee raises a grievance of unjustified dismissal, he doesn't have to prove his employer was unreasonable. The employer has to prove the dismissal was justified and that means he has to do all the hard work.

What's really silly is that these workplace arguments ever get out of hand in the first place. I've had more than one case where the employer just behaved like a complete idiot and sacked a worker for not agreeing with him, or for not accepting some daft and unfair action of his - and then turning it around later to try and say the employee was in the wrong.

Never fear - it will all come out in the wash eventually. You'd be surprised how easy it really is to find a witness in a workplace. Even passersby become witnesses. The beauty of the ERA is that evidence can come from anywhere. A conversation recorded without the bosses knowledge, a conversation recorded with the bosses ex-girlfriend who has a bad pillow-talk habit and no sense of loyalty, the next door neighbour on the job who was eavesdropping over the fence, the guy behind the bar who served the boss his beer that night... if there's evidence out there, you can bet your bottom dollar we'll find it somehow.

Let's go over this again to be sure everyone understands...

Part 9, Section 103: Personal grievance

(1) For the purposes of this Act, personal grievance means any grievance that an employee may have against the employee's employer or former employer because of a claim—
   (a) that the employee has been unjustifiably dismissed; or
   (b) that the employee's employment, or 1 or more conditions of the employee's employment ... is or are or was ... affected to the employee's disadvantage by some unjustifiable action by the employer; or
   (c) that the employee has been discriminated against in the employee's employment; or
   (d) that the employee has been sexually harassed in the employee's employment; or
   (e) that the employee has been racially harassed in the employee's employment; or
   (f) that the employee has been subject to duress in the employee's employment in relation to membership or non-membership of a union or employees organisation;



etc, etc... Any questions? Call me.

Rachel Rolston

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Kelly Tanner Workplace Bullying Case Awards $40,000 at the ERA - May 2011

A recent determination in the ERA between a Tauranga truckdriver and a local transport firm highlights the requirements of employers in dealing appropriately with issue’s of workplace bullying in an appropriate timely manner.

Advocate’s from Tauranga Advocacy Network were heavily involved in the initial case, and were the primary liaison between the two parties. Post-mediation, the case was attended by Warwick Reid of Reid Legal Services.

The employee had raised a complaint in January 2010 to the employer alleging bullying and requesting the employer investigate with an understanding of the negative health impacts the alleged actions were having on her.

The employer had no documentation between January and July 2010 to show that any substantial action had been taken to address the alleged bullying or protect the employee from further health – impacting stress, and took no steps to prevent the bully from striking again. In July 2010, the employee went on sick leave which would prove to be extended by medical certificates to early October 2011.

When the employer and our advocate met, we requested that they investigate the matter. It was pointed out to the employer however, that harm had already occurred to the employee, and that the lack of documented evidence of substantial action to protect the employee may well leave them liable under current legislation.

Several interesting points were gleaned from this case, and some other matters in recent news:

• Egg shell skull principle - The eggshell skull rule (or ‘thin skull’ rule or ‘you take your victim as you find him’ rule of the common law) is a well established legal doctrine. Link >>
• Vicarious liability for managers actions - meaning that the actions of an employee are, for the purposes of the law, regarded as the actions of the employer. Link >>
• Mental harm (understanding) – details and definitions of mental harm, and the applicable legislation and payment expectations. Link >>
• Workplace Bullying as a criminal action – becoming otherwise known as “Brodies law”, The Work Health and Safety Bill 2011 enacts the nationally agreed Model Work Health and Safety Act (Model Act) in NSW to take effect from 1 January 2012. Link >>
• Firearms in the Workplace - it will be interesting to see if this gets any attention, as we believe it's just as important to tighten current firearms laws as it is to introduce new legislation.

This is one of New Zealand’s larger awards in a workplace bullying dispute. Workplace bullying is a serious matter that employers need to take more care than ever to manage appropriately. New Zealand is several years behind Australia in dealing with bullying from an Employment Relations perspective, employers and managers would do well to take heed that our cousins across the Tasman are now contemplating whether workplace bullying should be a crime punishable under law by a maximum imprisonment term of up to 10 years.

In light of this and the bullying cases, New Zealand employers should take great care in establishing and firmly implementing consistent and coherent policies and procedures to protect themselves and their employees from any harm.

If you believe you or someone you know is being bullied at work, give Tauranga Advocacy Network a call (note our new number: +64 – 022 386 2287) and come and see us for your free initial consultation. We can give you advice and support to decide on your course of action to ensure your protection.

There is far more to this case than was ever noted in the determination. The personal sacrifices and victimisation from other parties was truly horrendous while the 8 months of this battle waged on. From Legal Aid providers refusing to help, to Housing New Zealand evicting her, Kelly fought through everything with dignity and pride, despite the fear and grief. Kelly is a hero among victims for what she has accomplished with this case, we can only hope those to come don't need to go through what she did to find justice.

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"Procedurally and substantively" - Disciplinary Action and Dismissal

Two recent cases upheld in the ERA have been identified as being the result of what we would call 'procedural or substantive unfairness'. They highlight the need for employees to be aware of the policies under which they are working, as well as the contents of their employment agreements.

In the first case, Roihana Nuri was accused of faking illness to get time off work and was subsequently dismissed from his job. The ERA finding was that the employer had failed to follow its own policies by not producing a written report and not formally giving Mr Nuri an opportunity to comment on the preliminary view. Whether or not Mr. Nuri was guilty of having done what he was accused of, the employer must follow specific guidelines in dealing with the matter. Their failure to do so resulted in a success for Mr. Nuri at an ERA hearing.

In the second case, Karl Browne was indefinitely suspended before being asked to resign after a drugs investigation by the employer, which the ERA found to be "extremely unfair", and amounted to a 'David and Goliath' situation. Despite no drugs or drug paraphernalia being found, Mr Browne and other colleagues were interviewed and Mr Browne was indefinitely suspended before being asked to resign. The employer believed it had the right to sack Mr Browne because it believed he had used drugs or had drugs in the workplace. The ERA on the other hand was satisfied that there was no actual evidence of this.

Employers must deal with their employees in 'good faith', and they must have a 'good reason' and follow a 'fair process' prior to taking disciplinary action, or making a decision to end someone’s employment.

In order for the employer to have ‘good reason’ for the dismissal or disciplinary action, it must:

• have a genuine work-related reason for the dismissal or disciplinary action, and
• genuinely and reasonably believe that dismissal or disciplinary action is necessary or appropriate.

An employer’s reasons for dismissal or disciplinary action must be reasonable to an independent and ‘reasonable’ observer. For example, it would not be reasonable to dismiss an employee instantly for a one-off instance of minor or trivial misconduct. However, if the employee has had sufficient warning and persists with the same or similar misconduct, then, after a fair process, dismissal may be reasonable.

If the problem goes to the Employment Relations Authority or the Employment Court, they will look at whether the employer was being fair and reasonable in the disciplinary or dismissal action. In particular they will consider whether:

• the employer investigated sufficiently, taking into account the resources of the employer to do that
• the employer raised their concerns with the employee before taking the disciplinary action or dismissing the employee
• the employer gave the employee reasonable opportunity to respond
• the employer genuinely considered the employee’s explanations.

Some employment agreements or policies specify the types of situation that might result in disciplinary action or dismissal, or the process the employer and employee must follow. In most of the cases we have handled recently, investigations indicate that the treatment of the employee is both procedurally and substantively unfair. That means the employer has either not followed their own policies, or they have been unfair in the interpretation or implementation of them.

Employees need to understand how important it is to have an independant person watching over both disciplinary and dismissal matters, to ensure that their right to fairness is upheld.

If you're facing disciplinary action, especially if it may result in dismissal, contact us to come with you and investigate it independently. It could save you a lot of trauma later!

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