Posted on: Feb 23, 2015
The Employment Court has considered — but not resolved — two interesting and important issues relating to the effect on remedies of blameworthy conduct
The first issue was whether a 100% reduction in remedies was in fact permitted by s 124 of the Act (reducing the remedy due to contributing behaviour by the employee). Chief Judge Colgan considered that there was a “respectable argument” that it was not, but he thought the matter needed to be addressed another time and by a full court.
One element of this argument was the fact that s 103A (the test of justification) now provides that a dismissal or action cannot be unjustified merely because of minor process defects on the part of the employer. That thereby dealt with cases in which the Authority or Court might previously have used s 124 to reduce to nothing remedies that would otherwise be provided to do justice to cases where only minor process defects had occurred.
The second issue was whether the Court or Authority has the power to order reinstatement to a position that was not the employee’s former position or to one less advantageous. A previous judgment of the Court had said that they do have such a power, but Chief Judge Colgan was doubtful as to whether this was so.
The Court held that the Authority had been in error in the case in simply deciding that the grievant was so blameworthy that she would not be entitled to remedies at all. Any reduction for contribution first required the Authority or Court to consider the remedies that would otherwise have been awarded (Harris v The Warehouse Ltd [2014] NZEmpC 188).
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