150 150 Eska Hartdegen

Grievance Claims, Reinstatement and Prohibitive Awards are not worth it for Employers

Figures obtained under the Local Government Official Information and Meeting Act showed that $405,000 was paid out by Auckland Council (AC) in settling and defending 35 personal grievance claims for a one-year period to July 2014 – 24 unjustified disadvantage, and 7 unjustified dismissal claims. They cost ratepayers $373,577 in payouts, and $32,019 in legal fees for defending claims. 35 grievances are a high figure, and 22 appeared to have resulted in payouts. With 7,062 staff, 0.5% of the staff took grievances in that single 12-month period.

This information and statistic should be of concern to Auckland ratepayers, who had to foot the bill. It also reflects a worrying trend in workplaces, particularly in Auckland, where employers are rather gung-ho, being quite prepared to make decisions without doing adequate investigation, and making ill-considered decisions based on insufficient evidence. This trend reflects a propensity to not treat staff fairly overall, and failure to comply with employment agreements, policies and procedures.

A pilot, employed for eight years who had been dismissed, was reinstated by the Employment Court in 2014. Both parties have name suppression. The facts are that the complainant, a flight attendant said that the pilot came into her room uninvited at an overseas destination, sat down next to her on the bed and “touched the inside of her leg from her knee to near her groin”. The pilot’s version differed in that he said that he had been invited into her room, that he had sat on her bed and accidentally “touched her leg with the outside of his hand”. The company preferred the attendant’s evidence and dismissed the pilot. The pilot’s unjustified dismissal claim was dismissed by the Employment Relations Authority (ERA), but that decision was overturned by Judge Corkill in the Employment Court, with the pilot being reinstated to his previous position, and awarded 6 months lost salary and $7,500 in compensation. The Court recommended that the pilot be issued a written warning in respect of what he had acknowledged to have been an error of judgment.

Judge Corkill was critical of the company’s investigation and held that there were flaws in the process, including failing to consider a similar other matter, and failing to adequately consider other alternatives to dismissal.

In Nathan v Broadspectrum (New Zealand) Limited (formerly Transfield Services (New Zealand) Limited), a case decided in the Employment Court in late 2016, Judge Smith reinstated Mr Nathan to his former position as Acting Team Leader. Mr Nathan, employed since July 2008, was a registered lines mechanic, and an Acting Team Leader. Mr Nathan had been called to repair a span wire on the network used by Wellington Cable Car Limited, damaged in a severe storm. In order to manage the repair work safely he had telephoned Wellington Electricity and requested that the relevant circuit be switched off until he advised otherwise. While at the site and wearing insulated gloves, Mr Nathan tested the span wire with a testing device and used the footpath as an earth. This testing showed the wire was not energised and could be worked on safely. An investigation followed after the span wire flashed or arced on a nearby traffic light pole while being pulled into place indicating that it was still energised. Mr Smith, a colleague, said that he “experienced a sensation he later described as a tingle, indicating the span wire was carrying an electric current and he may have experienced an electric shock”. Mr Nathan was consequently dismissed in August 2013.

Judge Smith found that “Mr Nathan maintained that he had taken steps to ensure the circuit was not energised and the incident was not a flashover but arcing; the difference between them being their severity. Mr Nathan also maintained throughout that he complied with his training and workplace practices”. The Judge awarded him 6 months lost salary ($40,000), and $7,000 costs in respect of the Authority proceeding, while reserving the Court costs.

Advice, and fair and good practices will stand employers in good stead, and may avoid costly personal grievance claims!

Reported extracts from the Employment Court decisions database and the New Zealand Herald on line.