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On the Phone

Baines v DSI, ERA August 2015

Paul Baines was a Crane Operator at DSI, a Rangiora Contracting firm. In August he got a letter telling him there had been 4 incidents of him using his cell phone in the crane and he must leave this in his car or in the tea room from now on. The letter advised he was operating a large 60 ton crane that needs concentration and your full attention for simple safety reasons. If you use your phone again, you will be dismissed.

The company manager, Daniel Smith, then got a text from another worker saying that Mr Baines  had used his phone again in the crane. Mr Smith forwarded the text to Mr Baines and dismissed him that day.

The ERA said the company should not have accepted the word of other workers, without carrying out an investigation. Mr Baines should have been warned his job was in jeopardy. Such notice was important because at one worksite, Mr Baines was told to have his cell phone on him as means of communication. He was awarded $5.2K for wages and $4.8K H&H. This was reduced by 20% for Mr Baines contribution.

Principle Dismissal

Rapua Timoti v Te Kura Kaupapa Maori O Otepou, ERA July

Ms Timoti was dismissed as principal of the Kura in Tauranga on August 22, 2014 after a dispute over payments made to her husband, who was a relief teacher. Her dismissal letter said she had breached acceptable standards of conduct and "seriously and detrimentally" affected the level of trust required of her role, had "created an opportunity" for financial advantage for herself and her husband.

However the ERA said that the scope of the school’s investigation was "unduly narrow", and they failed to speak to all parties involved. A more "co-operative and open response" could have meant a less severe outcome for Ms Timoti and the ERA ruled the investigation flawed. Evidence gathered could have shown she was "either careless" or had performed poorly in her duties, but failed to prove she acted deliberately or in a corrupt way - the grounds for her dismissal. Ms Timoti was awarded $20,029 for lost wages and compensation by the ERA (following 50% reduction due to her contribution).

Photo Shopped

Lata vs Oceania Care, ERA, July 2015

Asha Lata was a Healthcare Assistant at an aged care

facility in Gore. In Nov 2012 a photo was taken with Ms

Lata posing inappropriately with a resident. Another colleague reported this to Raewyn Healey, the Manager, who phoned Ms Lata (who lived an hour away) to ask her to come to a meeting. She also proposed suspension while she investigated further, which Ms Lata had no comment on. Ms Healey then confirmed the suspension in writing. The other colleague involved was also suspended and later resigned.

At the meeting, Ms Lata said the photo had been photo-shopped. Oceania then consulted a Forensic Imaging company who found the image hadn't been altered. Ms Lata was dismissed.

In her PG she claimed she was unfairly disadvantaged and dismissed and her suspension was unjustified as it was discussed over the phone. Oceania counterclaimed for the cost of the Forensic Test.

The ERA said Oceania was justified in both the suspension and the dismissal. They did not accept that Ms Lata was not given an opportunity to comment before being suspended. "I note the conversation occurred over the phone and was not face to face. I conclude that was a practical way of addressing the issue given the distance Ms Lata lived from work. I take no issue with it.“ Oceania's counterclaim was dismissed.

Don’t just believe it

Alapiti v Department of Corrections,

Employment Court Feb 2015


Willie Alapiti was a Corrections Officer at Rimutaka prison. In July 2011 he had been working in the remand unit. A prisoner asked him if he could make a phone call, but Alapiti said no, as calls were restricted that day. Alapiti, who is Samoan, said the prisoner started ‘nutting off’ and yelled ‘f*** off you coconut’ when asked to calm down. Mr Alapiti then locked him in his cell and gave him a ‘talking to’. The Police investigated and decided to lay no charges. Corrections also investigated by inter-viewing the prisoner, and believing him, dismissed Mr Alapiti.

The Employment Court said the investigation was  flawed as everything the prisoner said was accepted and the decision makers didn’t question or challenge the findings.

After he lost his ERA case,  the Employment Court ordered reinstatement and a $20,000  award to Mr Alapiti for his hurt & humiliation

Stoned at school

Wallis v Kohanga Reo o Ngatiki,

ERA Jan 2015

             Tania Wallis was a preschool teacher in Taranaki and had been working for 2 months there. In April 2014 the Service Manager, Angelique Ngeru, heard her own name bandied about in relation to a drug house in the  area. She thought it was a joke but then became worried

about her reputation so visited the house and found the person using her name was related to Ms Wallis.  The following week Ms Ngeru accused Ms Wallis of coming to work stoned three times. An emergency hua was called by Ms Wallis where Ms Ngeru accused her of being "totally stoned out of her brains" during the meeting. Ms Wallis denied all the accusations but admitted that outside of work, she had smoked synthetic drugs in the past. At another emergency hui a week later, without a representative, Wallis said she was the victim of bullying and racism and resigned.

The ERA said they should have investigated properly and allowed a representative. The Kohanga was ordered to pay $2K for not following process and $1250 in costs..

Golf Cart Crash

Sahim v Menzies International, ERA Nov 2014

Mohammed Sahim was a cargo handler at Auckland Airport and crashed his golf cart. It smashed the front wheel off and knocked over a 1.5m pile of pallets. Sahim said he pressed the accelerator by accident rather than the brake. The incident was reported as minor however the company watched video footage and saw he’d been sitting in the passenger seat. They reclassified this as driving recklessly and dismissed him.

The ERA said it was negligent driving not reckless so shouldn’t have resulted in dismissal. Mr Sahim was awarded $6K in H&H and just over $6K in wages but these were reduced by 90% for his contribution.


Chilly Dismissal

Coulthard v Tony’s Tyre Service, ERA Sept 2014

Sam Coulthard had been called into a disciplinary meeting about lateness and absences from work. Before the meeting he was asked to clean the ‘smoko’ room. While cleaning he bumped into the fridge, saw there was water coming out and took it outside. Later he and a friend removed the fridge. Tony’s Tyre Service investigated and decided he was complicit in the theft and dismissed him. The company said that he had never been asked to clean the ‘smoko’ room so had planned the theft. There was CCTV footage but this wasn’t shown to Mr Coulthard.

Do you think the ERA ruled this was fair or unjustified dismissal? What factors do you think were considered?

The ERA said it was unjustified. Tony’s should have shown the CCTV footage and should have checked who told Mr Coulthard to clean the ‘smoko’ room. Also Mr Coulthard did not wittingly steal the fridge, but did know about it. He was awarded $8,300 in lost wages and $5250 in hurt and humiliation. The wages amount was reduced by 25% for his actions.


Ferry Final Warning

Bailey v Fullers, ERA Auckland Sept 2014

Lisa Bailey worked for Fullers. When a customer arrived at Half Moon Bay ferry but couldn’t find her ticket she was told to stay, but then left the terminal. Ms Bailey chased her up the street, calling her crazy and a theif. The customer returned to the terminal to get her handbag with Ms Bailey still in pursuit, and was then almost hit by a taxi. One of Ms Baileys colleagues then said to the taxi driver that the customer was “a bit loopy’.

The customer complained to both Fullers and the Police. Fullers then issued a final warning.

The ERA have said this was fair and reasonable. "Fullers reached a reasonable conclusion that Ms Bailey's actions in following the customer off the worksite without authorisation and reminding the customer that what she had done was theft, constituted serious misconduct in that it was intimidating and harassment," the ERA found. “It also demonstrated poor customer service”.


Zero Tolerance

O’Connor v BallanceAgri-Nutrients: ERA Sept 2014

Shaun O’Connor had been working for Balance for 8 years. He had one warning for smoking outside designated areas and a final warning for dumping rubbish. He and a workmate went for lunch in Mr O’Connors car and while he was waiting for his mate to pay the bill, sitting in the main mall carpark, he smoked a cigarette. The next day he was called to a meeting with his manager who said a member of the public had reported he had been smoking marijuana in his car. Ballance asked him to take a drug test or it would be serious misconduct. The test came back non-negative. At his disciplinary meeting Mr O’Connor said he had smoked cannabis at home, but not at work. Ballances drug policy said there would be education and where necessary rehabilitation and testing for drug use.

None of Mr O’Connors colleagues or supervisors had an issue with his work that day. The company said they had a ‘zero tolerance’ of drug use and dismissed him. What factors do you think did the ERA said made this unjustified?  

The ERA said there were no grounds to run a drug test. The location of Mr O’Connor’s car did not entitle reasonable cause and none of his workmates or supervisors had any issue. There was no zero tolerance mentioned in the policy & in fact the policy wording was incompatible with a zero tolerance concept. Mr O’Connor was awarded $10,857 for lost wages and $3K h&h.


Housing hullabaloo

Peters v Housing NZ, ERA Nov 2013

Mr Peters worked as one of two Housing Advisors rostered on the night shift in Porirua. Mr Peters got to know one tenant who called Housing NZ more than 10 times a day, complaining about it not assessing his rent claim.  

In the ERA decision, the customer was called Mr Y and he managed to convince Mr Peters that he had been treated unfairly. Mr Peters emailed the claims manager in March to say that Housing NZ were in the wrong.

Mr Peters manager was concerned that Mr Peters was acting above his role and investigated his conversations with Mr Y who revealed Mr Peters had been critical of Housing NZ and had offered to be Mr Y’s support person at the Tenancy Tribunal if he took a case.

At the disciplinary meeting Housing NZ presented allegations that Mr Peters had been heard calling tenants ‘arseholes’ and accusing them of ‘diddling the country out of money’. Housing NZ dismissed him. Mr Peters argued that the comments were not serious misconduct. Housing NZ said one of their standards was treating tenants with respect.

Which way do you think the ERA ruled?

The ERA said it was a fair and  reasonable decision.


Kiwifruit fight, done right

Well done to Aulack Farms who handled their dismissal well. Aulack are a Whakatane kiwifruit farm who hired the Tiopiro brothers as pickers. When the brothers lowered a fence which could let cows out, they and the farmers son got into a violent fight

with the son ending up in hospital.

The MD listened to the different version of events then wrote to the brothers to have a formal disciplinary meeting. They didn’t show up so he rang them several times, they didn’t answer.  After several days of trying he then sent them a letter dismissing them. The brothers claimed they hadn’t got any of the letters or calls but the ERA said Aulack had done as much as they could & the dismissal was upheld.


Rubbish Drug Test

McLeod v Envirowaste, ERA July 2016

Gary McLeod was employed as a truck driver for Envirowaste in Christchurch from January 2013 to 2015. After Easter Weekend in 2015, he was asked to submit a random drug test.

The test returned a positive response for THC –  the main mind-altering ingredient found in cannabis  and Mr McLeod was asked to attend a disciplinary meeting. He explained that he had attended a party on Easter weekend and he had been drunk, but couldn't remember smoking cannabis at the party and wondered if the positive result could be by second-hand smoke.

He instructed a lawyer to represent him and submitted a second drug test, which was negative. A second meeting was held and he was subsequently dismissed from his position at Envirowaste for serious misconduct.  

What steps did the ERA say that Envirowaste should have taken?

What was the key issue they were confusing?

Answer: The ERA said Envirowaste could quite easily have spoken to Mr McLeod's wife or other family members who were at the party to determine if he was really so intoxicated he might have memory loss of that evening or whether they saw him smoke cannabis.

The ERA said Envirowaste had blurred two allegations, that Mr McLeod attended work under the influence of drugs and that he failed a drug test. Their decision to dismiss Mr McLeod was based on the conclusion that he had been under the influence of drugs at work, a conclusion that was never put to McLeod in a way he could respond to. They awarded him $21,306 in lost wages and $11,000 compensation for hurt and humiliation.


Heart attack dismissal

Brown v Advance International Cleaning Systems ,

ERA July 2016

Lee Brown worked as an Account Manager for AICS in Hastings, and had a heart attack on 13 July 2015 and needed to undergo open heart surgery. On 10 August he advised the company his doctor recommended he remain off work until 1 September.  Mr Brown's manager considered the company would be impacted by his absence for such a long period and sent him a letter saying "it may be best that you stand down".

Mr Brown engaged a lawyer and raised a formal grievance with AICS that he had been unjustifiably dismissed.

The ERA said medical incapacity was the "prime" reason behind AICS' decision to dismiss Mr Brown, however an employment contract isn't ended just because an employee is ill or has been in the past, there must be medical evidence that the employee is permanently unable to work. Therefore the dismissal was unjustified and they awarded Mr Brown $6,000.

Learnings: If you are considering medical incapacity, it’s unlikely to be seen as fair and reasonable to not be able to hold a role open for a couple of months. You must also get a medical opinion if the person is not able to return at all or for a long period.


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