The case involved a logging company whose employee, a Ms P, was successful in her claim for unjustified dismissal. Ms P began her employment with the logging company in early 2010. From reading the decision it is apparent that during her time there Ms P had many arguments with a Mr H, who was effectively the General Manager. During July two arguments, more serious than the others, took place between Mr H and Ms P. In August Ms P was no longer employed by the logging company.
However, Ms P and Mr H differed as to whether Ms P had been dismissed or whether she had resigned from the company.
During the altercations in July, Mr H claimed that Ms P had said “she was finished” and that Mr H could “shove his job”. Mr H stated before the ERA that he was of the understanding that this was Ms P’s resignation, and that he believed she was giving notice (and when this was worked out her employment would cease).
However, Ms P claimed that she never made such statements and that she never intended to resign from the job. Further, Ms P claimed that at a meeting on 2 August 2010 Mr H told her that he was sick of her and that at that stage he terminated her employment.
The first interesting feature of this case that I would like to point out to employers is that after Ms P brought a claim to the ERA Mr H put the issue to one side. He did not file a statement of reply in time, nor did he call any witnesses.
During the investigation into the matter Ms P was able to call two witnesses who had overheard one of the July arguments and both said that they did not recall Ms P making the above comments. Mr H sought to bring his own witness, who undoubtedly would have said the opposite, however he had not submitted the witness in time and so the ERA declined the application. Thus it was three people’s word against one.
The Authority found that it was more than likely Ms P had not said what Mr H claimed she had. Mr H effectively dismissed her at the meeting on 2 August 2011. Further, the ERA stated that even if she had said these words it would have been insufficient for Mr H to rely on them, without further investigation, as constituting her resignation. Mr H did not do this.
I hear all employers sighing and saying – what – if someone tells me to “shove my job” why can’t I take that as a resignation? The law is that a fair and reasonable employer would have further investigated whether Ms P meant for these words to be a resignation and whether they were not merely said in the heat of the moment. This is recognition that many people say things when they are angry or upset that they don’t actually mean.
This situation was further exacerbated by the fact that Ms P did not have an employment agreement. Therefore, because Ms P had been unaware of the notice that would be required, Mr H was under even greater duty to ensure that Ms P had in fact resigned and to discuss the notice period (this is of course if the ERA had believed Mr H instead of Ms P, which they did not).
From this case employers can take two lessons.
Troublesome issues with employees do not go away simply by ignoring them. If Mr H had responded to the ERA earlier he would have likely been granted permission to call his witness, and been in a better position to persuade the Authority that his version of events was the correct version.
If someone “resigns” in circumstances where there has been an argument or a falling out an employer also needs make sure that the resignation was intended and not a hasty outburst said in anger.
Ms P was awarded $5,867 for lost remuneration, $4,800 for hurt and humiliation ($6,000 minus 20 percent for Ms P’s contribution to the situation), $3,047.20 for unpaid wages, and a contribution for costs.
Just a quick reminder that one of the new requirements under the Employment Relations Act 2000 came into effect on 1 July.
Employers must now keep a copy of the employee’s individual employment agreement ( IEA) or the current terms and conditions of employment. They must also keep a copy of any intended agreement even if the employee has not signed the terms, or even agreed to any of the terms.
The employer must, on request, provide a copy of the document as soon as is reasonably practicable or face an action by a Labour Inspector.
So, remember to keep good records and keep a copy of every IEA.
