ERA determines if pilot reasonably notified of his dismissal
The Employment Relations Authority recently dealt with a case involving a dispute over the interpretation and application of a termination clause in a collective agreement between an employer, Jetconnect Limited, and a worker, a pilot employed by the company.
The Authority had to determine whether the employer had given the worker proper notice of termination as required by the agreement.
In this case, the Authority discussed the contractual interpretation, focusing on the objective meaning of the words used in the termination clause.
The worker was employed by Jetconnect Limited as a pilot until his dismissal on 24 April 2022. He held the position of Captain and was covered by a collective agreement between Jetconnect and the New Zealand Air Line Pilots' Association Industrial Union of Workers Incorporated (NZALPA).
Due to the impact of COVID-19 on Jetconnect's operations, the worker had been stood down without pay (with his consent) from around May 2020. In December 2021, Jetconnect advised that it would return pilots to the payroll with a view to resuming normal operations.
However, the worker declined to receive a COVID-19 vaccination and was therefore prohibited from travelling to Melbourne for recurrency training due to border restrictions. Jetconnect declined to accept a proposal that the worker remain on leave without pay until border restrictions ended, and no other work was available for him to perform.
On 24 January 2022, Jetconnect sent a letter to the worker, purporting to give three months' notice of termination, with the termination date being 24 April 2022. The worker disputed this, claiming that Jetconnect had failed to give proper notice under the collective agreement.
The Authority examined the termination clause in the collective agreement, which stated:
"Three (3) months written notice of termination of employment is required, except for a Pilot within their Probation period where two weeks applies, but dismissal without notice may occur for serious misconduct."
The Authority noted that the clause did not explicitly state that the notice period should be calculated from the day notice is given or include the day notice is given.
The worker argued that the day notice is given cannot be considered as the day notice commences, as it is not a full day of the month. Therefore, he claimed that the three months' notice should have commenced on 25 January 2022.
The Authority referred to the Legislation Act 2019, which provides guidance on calculating periods of time. Although the Act does not directly apply to the interpretation of employment terms, the Authority found it persuasive. The Act states that if a period of time is to be calculated from or after a specific date, the calculation does not include that day.
After considering the evidence and submissions from both parties, the Authority determined that Jetconnect's approach in interpreting and implementing the notice provisions of the collective agreement was correct.
The Authority concluded that the three-month notice period started on 25 January 2022, the day after the notice was given, and ended on 24 April 2022, immediately before the corresponding day in the ending month.
The Authority emphasised the importance of clarity in employment agreements, stating:
"The focus is on the objective meaning of the words the parties have used. Background material can be helpful as a 'cross check' even if the words used appear to be unambiguous."
Furthermore, the Authority highlighted the role of legislation in guiding the interpretation of notice periods:
“The correct approach to interpretation is an objective one and that the Legislation Act can be of assistance in providing guidance when interpreting a notice period in an employment agreement."
Consequently, the Authority determined that the worker had been given the required three months' notice and did not have a personal grievance of unjustified dismissal.
The decision reminded employers and employees alike to ensure that the terms of their employment agreements are clear and unambiguous to avoid potential disputes.
"Having heard the evidence of the parties and considered and analysed the parties' submissions I am persuaded that [Jetconnect's] approach in interpreting and implementing the notice provisions of the [collective agreement] is correct."
"I determine that the three month notice period started on 25 January 2022, the day after the notice was given and ends on 24 April 2022, immediately before the corresponding day in the ending month."
"I conclude that [the worker] was given the three months' notice and does not have a personal grievance of unjustified dismissal," the Authority said.
