Three60 Consult Logo

Employee Contribute Fault Situation 2

Posted on: Mar 22, 2013

It is worth remembering that an employer who defends a claim of unjustified dismissal by arguing the dismissal was justified because the employee’s position had become redundant cannot then claim that any award for unjustified dismissal should be reduced for contributory conduct by the employee.

In Ross v Midtown Medical Ltd, the employer might have fared better if it had not raised redundancy as a justification for dismissing the employee. The employer was facing fiscal pressure and said it asked the employee to consider a temporary reduction to her working hours. It said the employee refused to engage with it and cried and became agitated. Notes made by the employer confirmed that it did attempt to discuss the matter with the employee on several occasions. The parties eventually met and the employee had a legal adviser. During the meeting the employer said the only option was to reduce her hours. It said it did not need a full-time employee and “it’s legally called redundancy”. The employee asked when did the redundancy start and the employer said “it applies from now”. The employee began to swear, tore up letters she had just typed and stormed out of the room never to return.

The employee brought a personal grievance claiming unjustifiable dismissal. The employer denied it had dismissed her but said, if it had, then her dismissal was justifiable because her position was redundant.

The Authority found that the employee had been unjustifiably dismissed. It said the dismissal could not be justified on the basis of redundancy because the employer had failed to consult adequately with the employee. It said the employer had breached its obligation to put the employee on notice that by continuing with her refusal to respond she was running the risk a decision would be made without her input. The Authority awarded the employee lost wages and $5,000 compensation for hurt and humiliation. The Authority said at [58]:

“The defence was redundancy. Redundancy implies no fault, therefore the answer [to the question of whether the employee had contributed to her demise] must be no”.

It is possible, on the facts, that if the employer had merely denied dismissing the employee and offered no justification the employee’s remedies would have been reduced for contribution.

Disclaimer

This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.

Disclaimer

This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.

Subscribe to Newsletter

Christmas is coming…

Christmas is coming…

Once Labour Day has been [yes, believe it or not it’s this coming Monday], the next public holidays are at Christmas and New Year. It always feels like employers have to put a bit more thought into Christmas and New Year because: there are four public holidays; this is a time that many businesses have their annual closedown period; many employees take their annual leave; some employees don’t have enough leave to cover this period; some employment agreements have special rates for these public holidays; and, let’s face it, it is a busy busy busy time. In the next few weeks, my colleague, Tasneem Begum, and I will be offering a free webinar for those employers who want a bit more information around those tricky calculations for leave at this time of the year. We will also be able to answer the questions you have and the challenges you face with leave during the Christmas/New Year period. You are not alone with the questions you have – Questions we are often asked at this time of the year are about employing staff to cover the busy Christmas period

Read More
What the heck is going on with pay?

What the heck is going on with pay?

While we are conscious of the impact that inflation is having on wage and salary conversations, there are four other levers that have been, and are being, used to bring about fundamental change and significant uplift to pay in New Zealand. The Government is using these levers to drive increases in pay at various levels in ways that we may not be conscious of. However, when brought together as a single thread, they are having a big impact.

Read More
To Mediate or not to Mediate

To Mediate or not to Mediate

To mediate or not to mediate – that is the question… While William Shakespeare put into verse Hamlet’s soliloquy in endless agonising verse about dire choices with absolutely no chance of a happy ending – it is not so with mediation. Change the name, and the thinking around the word mediation. Let’s start thinking about it and calling it “an opportunity”. That’s really what mediation is; an opportunity for parties in conflict to come together and sort out their problem(s). It doesn’t have to be the only option, but it should be considered as a first step.

Read More
PREV NEXT