Employer gets everything wrong

The Employment Relations Authority has upheld a personal grievance for unjustified dismissal after a worker was fired following a heated argument with his boss.  The employer felt threatened by the employee’s aggressive behaviour and fired him on the spot.

Unsurprisingly the ERA found that the employer had failed to follow a reasonable process in reaching its decision to dismiss.  No allegations were put to the employee and there was no opportunity for the employee to respond or have a support person present.

The ERA awarded $6,900.00 in unpaid wages and $6,000 compensation for hurt and humiliation.  Those awards would have been double but for the aggressive behaviour of the employee which put the employer in the position of feeling threatened and contributed to the dismissal.

In addition to the failure to carry out a fair process the employer also got most of its other dealings with the employee wrong.  It had characterised the employee as a contractor rather than an employee.  However, the ERA held that the employee was not a contractor as the employer had deducted PAYE and paid this to the IRD and had also paid the ACC levies.  In addition the employee did not provide any invoices or have any control over their own business and all tools were provided by the employer.  This meant that the employer had not paid for public holidays worked or for public holidays not worked.  It had also not provided an alternative holiday for the public holidays that were worked.

The employer had also been required to deduct fines from the employee’s wages and pay those to the Crown.  The employer had made the deductions but had not paid those over to the Crown in full and had delayed for about a year in making those payments.  The employer was fined $1,000 for the failure to make those payments with $750 of that going to the employee.

So the employer’s actions here cost them over $13,000 plus a likely award of costs to follow.

Alan Knowsley
Employment Lawyer
Wellington