How an employer's failure to follow basic procedures led to hefty penalties
The Employment Relations Authority (ERA) recently dealt with a case where a worker claimed he was unfairly dismissed without proper process and denied his basic employment entitlements.
After years of employment, he was suddenly terminated via email for allegedly not showing up to work, despite having been told there was no work available.
The worker argued that he had never been involved in any disciplinary procedure, was never provided with a written employment agreement despite multiple requests, and was owed unpaid wages and holiday pay. When he tried to resolve these issues directly with the company, his calls were ignored and he was rudely dismissed.
Alleged unfair dismissal process
The worker began employment with the freight services company in 2021 but was never provided with a written employment agreement despite requesting one at least four times. Each time, the company director would tell him that he was finalising the details and that the agreement would be available soon.
The worker's job involved unloading shipping containers, working Monday to Friday starting at 7:30 am, with occasional Saturday work. The site manager would text him the night before each shift with details about the following day's work location. By the end of his employment, he was receiving $25 per hour.
On 15 November 2022, the site manager approached the worker and his sons at the worksite, advising them that the business had reached its container capacity and there was no more work until further notice. The worker stated this was not unprecedented, as he had previously been sent home "once or twice" when no further work was available.
Three days after being sent home, the worker received an email informing him of his termination. The email claimed he had failed to show up for two days without contacting management, describing this as "not acceptable."
The dismissal email stated: "Because of poor excuses and reasoning in regard to working and turning up to work. This is the final step in our disciplinary process and a decision we have made after further thought and discussion." The worker maintained this was the first communication he had received since being sent home, and that he had never been involved in any disciplinary process.
The ERA found that the employer had failed to comply with minimum procedural fairness requirements under the Employment Relations Act 2000. The dismissal was both procedurally and substantively unjustifiable, as the employer had not raised any concerns with the worker, provided no opportunity to respond, and had not genuinely considered any explanations before dismissing him.
The worker told the ERA that the dismissal had serious impacts on his wellbeing. His son testified that he could see his father "going into his shell" and becoming much quieter than usual. The worker also struggled financially after losing his job.
The ERA awarded $15,000 in compensation for humiliation, loss of dignity and injury to feelings. A complex aspect of the case involved unexplained payments made to the worker after his dismissal, totalling approximately $4,000 gross, which the ERA treated as "post dismissal wages" and deducted from the lost wages award.
What further complicated matters was that in February 2023, the employer invited the worker back to work, but dismissed him again after just two weeks when he tried to discuss payment issues.
As the ERA noted, the fact that the employer "would re-employ [the worker], having only recently dismissed him summarily for cause... reinforces the finding that [the] decision to dismiss [the worker] in November 2022 was substantively unjustifiable."
The ERA identified several serious legal breaches by the employer, including failure to provide a written employment agreement, failure to pay wages when due for work performed on 14 and 15 November 2022, and failure to pay 84 hours of accrued holiday pay that appeared on the worker's final payslip.
When the worker tried to resolve these payment issues, he attempted to contact both the company director and site manager, but they wouldn't take his calls. When he finally reached the director using a different phone number, he was told to "fuck off and talk to my lawyer" without being given the lawyer's name.
The ERA determined: "The failure to pay wages and holiday pay is a breach of minimum entitlements and of employment standards. These are important rights. This case also demonstrates some of the difficulties in operating without a written employment agreement."
In assessing the breaches, the ERA found they were intentional rather than accidental: "In refusing to provide [the worker] with an employment agreement, despite repeated requests, [the employer] was preferring one group of employees over [the worker]. In this regard, [the employer] has acted unlawfully, and such conduct can only be seen as intentional. Similarly, the refusal to pay wages and holiday pay arrears is also intentional conduct."
The ERA imposed a penalty of $3,000 for these breaches, with half to be paid to the worker and the remainder to be paid to the Crown, finding the amount "proportionate to the seriousness of the breaches and the harm caused." a
