An ex-employee entered into an agreement to settle his personal grievance at mediation. The agreement provided, “These terms of settlement and all matters discussed at mediation shall remain confidential to the parties”. The employee’s workmates (the employee was employed by a new employer) knew he had been to mediation. When the employee returned to work he was alleged to have said, “woohoo, I won my case”, and in response to a question about how much money he had got he said, “compared to the money I’m making here, I’ve got enough to last me till Easter”.

The company arranged, on separate occasions, for drug tests to be carried out on two employees, the apparent reason for one being “mood swings” and no reason being given for the other, though it arose in relation to an allegation of insubordinate behaviour. Both employees showed significant positive readings for cannabis in urine samples. Despite the readings, both employees were told they were not a health and safety risk and were required (in breach of the employer’s policy) to resume work straightaway. Both employees started rehabilitation courses which were aimed at weaning the employees off drugs rather than attempting a “cold turkey” approach. In spite of the fact that testing in the rehabilitation period was intended for the purpose of comparison, and not as evidence to support dismissal or other disciplinary action, the two employees were required to take second tests a fairly short time after beginning rehabilitation. One employee was drug tested because he injured himself at work, the other employee was accused (two weeks later) of smelling of cannabis at a work function. The employees were dismissed because they were both still showing positive readings for cannabis, though at much lower levels.

Taken from the movie “Up in the Air” with George Clooney, this clip gives an amusing example of how NOT to terminate someone’s employment.  This movie is full of very amusing but highly unlawful firing’s that would undoubtably lead to a personal grievance for unjustified dismissal if such techniques were attempted in New Zealand.

Mediation can be a highly effective way to solve employment relationship problems and personal grievances. It’s unlikely that both parties are going to be ecstatic about the outcomes of mediation, however the aim is to achieve a settlement that both parties can live with. Properly utilised, it can mean real savings in time and legal fees, and helps avoid the stresses and disadvantages involved in escalating the dispute through to the ERA. Further, whereas Authority and Court cases tend towards a “winner takes all” type of outcome, mediation generally allows both parties to come away with upsides if a settlement can be reached, and it allows for more flexible and creative resolutions.

Background: I am the owner of a club and bar in downtown Auckland. My night-time receptionist X has brought a personal grievance against my company claiming that she has been constructively dismissed as a result of events on 10 October and following. X has always been a good worker and a popular employee.

In a recent case, an employee was awarded compensation of $750 because her employer did not advise her of her right pursuant to part 6D of the Employment Relations Act 2000 (the Act) to take two paid ten-minute breaks during her working day. The employee had been employed for three years. The Employment Relations Authority said the Act required the employer to be proactive and ensure that what was required to be done was done.

When a disciplinary investigation takes a long time to complete, the employer should take into consideration the length of time that has passed when deciding on an appropriate outcome.

You might remember back in 2011, when the Spit Roast Catering Company (SPCC) won the case over the right to cover up a Maori worker’s tattoo. Claire Haupini was employed to help set up such functions, serve at them, and tidy up afterwards, effectively fulfilling a “frontline” role she, along with other staff, had direct contact with the company’s clients.

Last week, Labour Minister Simon Bridges launched guidelines for company directors on leading and managing health and safety in their workplaces.  These guidelines say directors should make workplace health and safety a business priority. We thought this would be a timely reminder to our clients about their health and safety obligations, especially with regards to the hiring of contractors, and where the corresponding health and safety liability falls, which is often misunderstood.

Generally, when a redundancy has been found to be genuine but the procedure undertaken by the employer in effecting the redundancy is procedurally flawed, the employee will not be entitled to be reimbursed for the resulting loss of remuneration. However, as the Employment Relations Authority pointed out in Rose v New Leaf Beauty Therapy Ltd [2013] NZERA Wellington 32, even when a redundancy has been found to be genuine it is still necessary to consider whether, if the employer had acted fairly, a redundancy would have occurred. That consideration is necessary because, if the employee is able to provide plausible evidence of reasonable alternatives or other options that might have prevented the job loss, the employee may be able to prove that he or she lost remuneration as a result of the grievance (not of the redundancy) and therefore be entitled to be reimbursed for the lost remuneration.