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Friday, 11 November 2011

PERSONAL GRIEVANCES: PROCEDURES UNDER THE EMPLOYMENT RELATIONS ACT 2000

PERSONAL GRIEVANCES: PROCEDURES UNDER THE EMPLOYMENT RELATIONS ACT 2000



 


Table of Contents


 


 


I.      Introduction.. 3


II.     The Employment Relations Act 2000. 4


III.        Issues of the Case.. 5


IV.       Personal Grievances.. 6


A.    Inadequate Support. 7


B.    Unjustifiable Dismissal. 8


C.    Possible Remedies. 9


V.    The ABC Trust’s Defence.. 10


A.    Substantive Justifications. 10


B.    Procedural Justifications (Procedural Fairness) 11


VI.       Analysis of the Case.. 12


VII.      Conclusion.. 13


VIII.     References.. 14



 


I.              Introduction

An old adage has noted that without rules and laws to follow, we are but savages. There is nothing untruthful in that claim, an environment devoid of any form of established tenets and standards to follow essentially will result to chaos. This is especially true in relationships where there is an inequity in power and position like that between of the employer and the employee. Without laws, it is more likely that every relationship in this regard will end up being an abusive one. In the case of New Zealand, the state has ratified a set of rules governing every facet of the employment environment. Basically, these laws are maintained in the Employment Relations Act 2000 (ERA). The terms and agreements provided in this piece of legislation apply to anyone in New Zealand that works in exchange of payment from another person (employer). More specifically, the law applies to those who receive any form of commission, piece rates, and salary. It must be emphasised that the employment relationship in this area should be covered by “contract of service” and not a “contract for service.” This means that the principles of the said legislation are only applicable to those having an employer-employee relationship and not valid in instances of principal-contractor relationships. In this paper, a discussion on the procedures available for both employers and employees in New Zealand law, particularly in instances of conflict, will be provided.


 


 


II.            The Employment Relations Act 2000

As indicated in the introduction above, the law only applies in employment agreements that fall under contract of service. This means that the parties involved in this agreement have a fiduciary relationship. The presence of this connotation was recognised by the state and reinforced it to some extent by instilling the good faith doctrine in the ERA. Section 3 of the ERA even maintained that it is the instilment of good faith in employment relations serves as the general objective of the Act. In the same manner, s4 of the said piece of legislation intimated that the employer and the employee must always act in good faith. In looking at the terms and principles of good faith infused in the ERA, it appears that the law intends the employers and employees in New Zealand to understand the human relationship that exist between them. In placing the term in the ERA, it has then become a basic requirement of the law that these employers and employees should not carry out activities that is tantamount to any misleading or deceptive outcomes. Being the objective of the ERA, it also intimates that deception any for of misleading behaviour is barred from any of the dealings between the employer and employees. These activities range from hiring (s101), collective bargaining (s33-s34), to addressing disputes in the organisation (s129). Generally, the relationships and the consequent conflicts between the employee and the employer are seen in the case of ABC Trust and John. The issues on the said case are presented in the following part of the paper.    


 


III.           Issues of the Case

The case involves John and his employer ABC Trust. The dispute between the two parties initiated when John, the herd manager, had an altercation with a co-worker in the farm. The altercation resulted to massive injuries on the part of the co-worker and the initial suspension of John. The trustees gave John a chance to explain his side of the story. However, they eventually dismissed him after they deliberated the case.  


The decisions of the trustees prompted John to file a suit against ABC Trust claiming that he has been unjustifiably dismissed. This claim points out instances that date in the early periods of John’s employment in the trust. He claims that he is not being compensated properly given that he is handling uncooperative subordinates, one of which was Bob whom John assaulted after the altercation. On the other hand, the trust views John as an incompetent employee and apparently extremely capable of doing what he did to Bob. They characterised him as “out of his depth” which intimates that they are already contemplating of letting John go even before the altercation took place.


In this manner, there are several issues that should be considered in the case. First, was the claim of John pertaining to his unjustifiable dismissal valid? What are the remedies for John if his claim against the Trust was successful? In the same manner, there is an issue whether the Trust complied with the prescribed procedures in dismissing an employee. What are the available defences for the Trust to minimise their losses and even dodge conviction from the relevant authorities?


IV.          Personal Grievances

Under the ERA, the employee is allowed to file a personal grievance as intimated in s103 of the said legislation. It is possibly the sole recourse of John to challenge the decision of the trustees to dismiss his employment. (s113, ERA)  The personal grievances are to be forwarded to the Employment Relations Authority within ninety days beginning the dismissal or communication of the dismissal.  


 In 2006, a study was made by the Department of Labour looking to gauge the trend of these grievances whether it goes in favour of the employer or the employee. (Department of Labour 2007) Specifically, claims pertaining to unjustified dismissal, unjustified disadvantage, and sexual harassment were considered. All in all, there were 47% of the cases which were decided in favour of the employees and another 8% cases in favour but with reduced remedies because the conduct of the employees were rather contributory to the dismissal. The remaining 35% are cases which go in favour of the employers.


In looking at the trend above, John’s claim against the Trust may find favourable outcomes for him. The following discussions will be looking at the facts pointed out in the case and determine as to John’s claims would have enough weight to find favourable outcomes. The discussions will focus on the alleged claims of unjustified disadvantage and unjustified dismissal. Recent cases will be taken into consideration to analyse the conditions surrounding the personal grievances of John against the Trust.


  


A.   Inadequate Support

The case interjected that John felt that he was being treated badly during his employ in the Trust. In this regard, he could make a personal grievance claim based on s103(1)(b) which indicates that


“personal grievance means any grievance that an employee may have against the employee’s employer or former employer because of a claim that the employee’s employment, or 1 or more conditions of the employee’s employment (including any condition that survives termination of the employment), is or are or was (during employment that has since been terminated) affected to the employee’s disadvantage by some unjustifiable action by the employer.”


 


To succinctly describe it, John is entitled to file a suit pertaining to unjustified disadvantage during his employment.


Looking executing the terms of the said Act, the courts considered several elements that should ensue to constitute an unjustified disadvantage. For instance, one is that the employee’s employment, or one or more conditions of employment, must be affected. In the case of John, the hiring of two unconscionable subordinates made him function ineptly as a herd manager. Based on the facts of the case, the altercation between Bob and John started when Bob did not comply with an order from John which the former continued to throw verbal expletives to his superior and eventually shoving him. This is the type of co-worker that John has to contend. This resulted to the trustees view that John is not fit for the job and that his hiring was a big mistake. In the case of Wellington Area Health Board v Wellington Hotel, the courts intimated that this element of unjustified disadvantage should only fall within “on the job” situations. Essentially, this has been satisfied in the conditions surrounding the claim of John.   


B.   Unjustifiable Dismissal

Based on the terms in s103(a) of the ERA, employers have the responsibility of justifying their acts pertaining to employee dismissals. Specifically, the ERA mentioned that the “employee has been unjustifiably dismissed.” This means that the actions which the trustees have acquired should be akin to what a reasonable employer would carry out. In the case of Air New Zealand Ltd v Hudson, the interpretation of this unjustifiable dismissal is taken into consideration. In the same manner, Food Processing etc IUOW v Unilever New Zealand Ltd indicated several elements that should be provided by the employer prior to the dismissal. These include the notice of the allegation, the opportunity to present his case, and objective deliberation of the case. In the case of John, there were several elements missing in his dismissal proceedings. First, there was indeed a notice of the allegation and an opportunity to present his case however the notice of the allegation was not given in an official manner to John while the opportunity to present his case precluded John from using representation and even a witness of what actually transpired. Lastly, the consideration of John’s case was far from being objective. The trustees had already a preconceived intent to terminate John. Moreover, their regard on John as a bad employee was not communicated in an explicit and fair manner. Specifically, there is some good reason to believe that there was, in fact, no notice given whatsoever on the job appraisal of John.   


 


C.   Possible Remedies

Essentially, the Act indicates that the primary remedy on which John could acquire would be the reinstatement in his position in the Trust. However, looking at the events that took place in the Trust, one can assume that returning to work would be the last thing that John would want. Fortunately, s123-128 pointed out several alternatives available for the claimant. These alternatives include reimbursement of lost wages and compensation; payment for humiliation, loss of dignity, injury to feelings; and for any other loss amounted from the case.  


The case of Housham v Juken New Zealand Ltd shows considerable resemblance on the case of John. The case also involved an altercation and consequent assault. The claimant mentioned that he punched the co-worker as a means of self-defence. After deliberations, the courts sided on the claimant maintaining that he was unjustly dismissed. The court awarded the claimant twenty thousand dollars worth of compensation for economic loss aside from the recovery of lost remuneration and superannuation subsidies that the company owed him. The case above indicates that there are several other ways of finding remedies for John. However, this could only be possible if he is able to build a case against the Trust presenting a clear and present breach of their contract of service and infringement of the existing laws of New Zealand.   


V.           The ABC Trust’s Defence

Relevant legislation and existing judicial interpretations have established a reputable attempt to make the employment policies fair for both the employer and employees. In the case of ABC Trust, there are several defences available at their disposal. The following discussions will be focusing on the substantive and procedural justifications of their dismissal of John. Moreover, a close consideration on the ERA and past cases will be provided to support the arguments in this part of the paper.  


A.   Substantive Justifications

The Trust is open to certain defences based on the substance of the case. For instance, they could show that they have indeed carried out a reasonable investigation pertaining to the incident involving John and Bob. As indicated in the Housham case, the action of John was not in any form a type of self-defence but an actual retaliation on the verbal expletives and shove coming from Bob. Following the principles intimated in the Air New Zealand Ltd case, the consequent dismissal of John is basically tantamount to what a reasonable employer would do. John overreacted in a really violent manner and it seemed that he was a threat to the rest of the personnel, including one of the trustees Bill, who works in the farm. In a sense, they were merely carrying out their job to secure a safe workplace for the rest of their employees. As indicated in the case of Williams v Napier Motors ltd t/a Dunedin City Ford, the employers have the legal responsibility to make the workplace free from avoidable harm.


In the case of ABC Trust, there are no facts indicating whether Bill or Peter witnessed the incident. Both of which were said to be in the farm at the moment of the altercation. However, based on the actions of the trustees, it would appear that the John was caught red handed in assaulting Bob. In the case of W & H Newspapers Ltd v Oram, the courts indicated that the firing of an employee would be deemed reasonable if the employee was caught red handed. Basically, there was a clear and unambiguous misconduct on the part of John as much as there is one on the part of Bob. In any case, it would have been appropriate to terminate both the said employees.


B.   Procedural Justifications (Procedural Fairness)

Based the case of Food Processing etc IUOW v Unilever New Zealand Ltd, the employer should provide the employee ample notice on the allegations that could cause him/her his/her job. In the same manner, the chance to justify his/her actions is also required as a part of the procedures in dismissal. The third requirement as intimated in the case was whether the investigation carried out was unbiased.   


Based claims of the Trust, there was enough procedures for John to justify the allegation. He was informed of the hearing of his case by the trustees and was given notice about the allegation. However, it would be difficult to prove on the part of John that the procedure carried out was far from being objective. Nonetheless, as maintained in the Air New Zealand Ltd case, one could surmise that actions provided by the trust to John were reasonable.


 


VI.          Analysis of the Case

The discussions above have presented the possible courses of action of both employer and employee in an instance where personal grievances are present. In considering the facts of the case, it appears that both parties are at fault. On the part of the employer, they have failed to follow the prescribed procedure pertaining to the termination and dismissal of employees. If they have given this much effort, then the claim of John would be essentially rejected after the deliberations of the courts. However, there are certainly some lapses in the execution of the law on their part.


On the part of John, physically assaulting Bob, despite the level of uncouthness that the said co-worker displayed is an overreaction. Bob was hospitalised because of his response. Being a supposed “manager” he should have taken steps to avert any form of violence in the workplace. This then exacerbated the view of the trustees not only his performance as an employee but also his behaviour as an individual. In any case, the thrown punches were not in any way tantamount to an act of self-defence. To the very least, it is an act of retaliation on the part of John.


All in all, the courts will more likely to take on the side of John intimating that he was unjustly dismissed. However, the full remedies will not be provided given that both parties are at fault. John did not report the attitude of the two subordinates to the trustees towards him which gave them no idea on whether the act done by John is a culmination of all the abuses and disobliging nature of the farm workers. In fairness to ABC Trust, they have done their share in terms of duties and responsibilities as employers. However, they have failed to carry out certain key elements on the dismissal of John. In the same regard, satisfying the standards of procedural fairness as maintained in the law was never met during the deliberation of the employers on John’s case.  


VII.         Conclusion

In any employment relationship, there is always the possibility of conflict taking place.  The discussions above have maintained that fact. Employers will always want more from their employees in terms of services while employees will always want more compensation for their work. The problem in this regard is that both will not get what they whether they like it or not. To boot, this will happen almost all of the time. Too often, this issue trigger certain conflicts between employers and employees. Nonetheless, the presence of the Employment Relations Act 2000 will make sure that the just procedure is conducted and the appropriate individuals compensated. The case of John and ABC trustees is a prime example the existing employment conditions in New Zealand. In the same manner, the consequent discussions provide for the relevant protections of the state on both the employers’ and the employees’ welfare and rights. Moreover, the presence of these legislations as well as the state bodies that implement it allows the labour sector and the industries to focus on realising their organisational goals and essentially doing the job that they are expected to perform. In any case, the presence of the Employment Relations Authority and the Employment Court gives both the employer and employee the appropriate avenue to iron out the uneven surfaces of their relationship. It always bears positive outcomes when these private entities have some recourse in instances where they could make everything right without severely aggrieving the other party. The ERA provides security for both the employer and employee that no amount of riches could match.


VIII.       References

Air New Zealand Ltd v Hudson [2006] ERNZ 415


Department of Labour. (2007) “Personal Grievance Determinations in the Employment Relations Authority.” Available at: www.ers.govt.nz/publications/reports/authoritystatistics07/authoritystatistics07_02.html [Accessed 19 April 2008]


Employment Relations Act 2000. Available at: http://gpacts.knowledge-basket.co.nz/gpacts/public/text/2000/se/024se103.html [Accessed 19 April 2008]


Food Processing etc IUOW v Unilever New Zealand Ltd[1990] 1 NZILR


Housham v Juken New Zealand Ltd [2007] ERNZ 183


Trotter v Telecom NZ [1993]  2 ERNZ 351


W & H Newspapers Ltd v Oram [2000] 2 ERNZ 448, 457.


Wellington Area Health Board v Wellington Hotel, Hospital, Restaurant & Related Trades IUOW [1992] 2 ERNZ 466


Williams v Napier Motors ltd t/a Dunedin City Ford 20 Dec 2007, J Crichton, CA 106A/07,



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