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Tit for Tat

1 September 2017

Mr N was working on a dairy farm in Hokitika for Mr H and Ms G. The employers had recruited Mr N from the Ukraine and he had brought over his wife, who was expecting their first child.

Mr N started on 5 June and all had gone well until things started to deteriorate around October. On 11 November the employers raised several concerns with Mr N’s ability to follow instructions and they held a disciplinary meeting with him. Mr N received a formal written warning.

Leave refused

On 17 January the employers had told Mr N that they were taking a small holiday and had booked to go away on 19 and 20 January. Mr N wanted to take 19 and 20 January off, as Mrs N was to be induced. The employers had told Mr N that was not possible and that if he wanted to take parental leave he had to apply for it in writing.

By the end of January Mr N had decided to work for the neighboring farm and he resigned.

Mr N asked to take sick leave on 2 February, as he wished to pick the family up from the airport after returning from Christchurch hospital. The employers initially said no, then later said he could leave early, and they did not deduct his wages for that early finish. They did however request a medical certificate for the baby, which Mr N supplied.

Get out!

Just prior to Mr N working out his notice period his working visa was amended to show that he now worked for the new employer. Mr N immediately thought that he could no longer work for Mr H and Ms G, so he arrived at work and advised the employers that he would need to finish at the end of the day.

Mr H and Ms G were obviously upset, expecting another week’s work from Mr N. The employers demanded he get out of the farm accommodation that day and as such he had vacated the house by 6.30pm that night.

Personal Grievance

Mr N claimed that he had been unjustifiably disadvantaged by Mr H and Ms G, as they had unreasonably denied him the ability to take parental leave and sick leave. He also claimed that he was also discriminated against in his employment on the basis of his ethnicity, and he was unreasonably required to remain at work on 19 and 20 January, when his wife’s labour was to be induced. He also claimed that he had been unreasonably disadvantaged by having to vacate the accommodation without sufficient notice.

Mr H and Ms G denied all of the claims made.

Parental Leave

The Authority found that Mr N had not complied with the written notice required under the Parental Leave and Employment Protection Act 1987 to take parental leave as requested on 19 and 20 January. The Authority also found it was not reasonable for the employers to cancel the holiday at such short notice.

The Authority found that there was no breach of any duty owed to Mr N in relation to the refusal of parental leave on 19 and 20 January.

Sick Leave

When Mr N had asked to take sick leave the employers had initially said no, but later agreed that Mr N could leave early and asked for a medical certificate. While technically there was no legal requirement for Mr N to provide the employers the medical certificate, there was no deduction from Mr N’s wages for the hour that he took off. Given this the Authority found that Mr N was not disadvantaged by the employers’ initial refusal to deny the half day of sick leave, nor the request for the medical certificate.

Discrimination

The employers were understandably angry at Mr N’s early departure after having recruited him from overseas, but they denied that their treatment of him was discrimination against his ethnic origin.

The employers felt that they could not have discriminated against him because they knew where he was from and had asked him to come over to work for them. In addition, there was no evidence that he had been discriminated against.

The Authority agreed and did not uphold this claim.

Accommodation

Mr N’s employment agreement gave him 14 days to get out of the farm accommodation. By requiring him to leave the day he finished work, the employers had breached that clause.

The Authority found that the employers did give an unreasonably short period of time for Mr N to remove his property from the house, however this was as a direct result of Mr N’s notice that he was finishing before the end of his notice period.

In the Authority’s view both breaches cancelled out any claim Mr N had in respect of the accommodation.

Outcome

The Authority found that Mr N had not established any of the claims made and therefore the decision gave no award for remedies or lost wages.