Mercer v Maori Television Service
 NZEMPC 133
IN THE EMPLOYMENT COURT AUCKLAND
In the Matter of a challenge to a determination of the Employment Relations Authority
Shelley Eden, counsel for the plaintiff
Blair Edwards, counsel for the defendant
Challenge to a decision of the Employment Relations Authority which held the plaintiff's dismissal was justified — plaintiff had received a number of warnings for lateness and poor performance — disciplinary meeting held at the same time as a performance review — whether decision to dismiss the plaintiff was justified — impact of an expired warning — negative feedback from superiors was not disclosed to the plaintiff and he was not given an opportunity to respond — HR advisor was a key witness and complainant and also assisted in the disciplinary proceeding in her official role — effect of plaintiff's actions on amount of compensation under s124 ERA (remedy reduced if contributing behaviour by employee).
Held: The Court's focus on the de novo challenge was to determine, on an objective basis, whether MTS's actions were not what a fair and reasonable employer would have done in the circumstances.
Feedback material was never put to M for comment before the decision to dismiss was made. The fact that negative feedback from M's superiors was given in confidence and was their opinion did not matter. It was questionable whether such material could be relied on for disciplinary purposes if M had never been given an adequate opportunity to respond to the criticisms made.
The period of how long the final written warning remained in effect had not been specified in the settlement agreement. Only the operations manager had assumed that the warning was in force for a period of 8 months. Expired warnings could be taken into account when deciding to dismiss an employee because the expired warning was part of the overall circumstances. However, here the operations manager had worked on the wrong assumption that the final warning was still current to justify the decision to dismiss. The lack of prompt disciplinary action and apparent acceptance of M's previous lateness may have led M to believe that his explanations had been accepted and that no disciplinary action would be taken. The dual role of the human resources advisor as the key witness and complainant about a late incident and her participation in the disciplinary process as the HR advisor was also problematic. The HR advisor had not made any attempt to verify M's assertion he was not late on the day in question and she had possibly closed her mind to any explanation contrary to her own view.
A fair and reasonable employer would have investigated the incident more thoroughly at the time. The operations manager seemed to have accepted the HR advisor's opinion without further questioning. There was also some confusion as to the true reasons for the dismissal. The dismissal letter referred to performance issues rather than M's lateness.
M had sought compensation for loss of wages and hurt and humiliation rather than reinstatement. Evidence of lost income was unsatisfactory but the Court was prepared to accept that M had lost at least 3 months’ salary and that an award of $10,000 for injury to feelings would have been awarded under s128(2) ERA (reimbursement) but for M's contributions. Section s124 ERA (remedy reduced if contributing behaviour by employee) required the Court to take into account the extent to which the actions of the employee contributed to the situation that gave rise to the personal grievance.
M was late on a number of occasions and there had been a decline in his performance. That justified a reduction in the awards by 25%.
Three months ordinary time remuneration less 25% was awarded. Compensation for humiliation, loss of dignity and injury to feelings warded at $7,500.00 being $10,000 less 25%.
JUDGMENT OF JUDGE B S Travis
The plaintiff, Mr Mercer, has challenged a determination of the Employment Relations Authority which found that his dismissal on notice was a decision that a fair and reasonable employer would have reached in all the circumstances at the time.
Mr Mercer was employed as a camera operator by the defendant, Maori Television Service (MTS), in February 2004. From as early as October 2005 he had received a number of notices from MTS about his lateness. In April 2006 he received a formal written warning for lateness which was to remain on his personnel file for a period of six months. He received further notices of lateness in August and September 2006, May 2007 and in June of that year was required to attend a meeting concerning another allegation of lateness. He was advised that MTS expected there would be no examples of unreasonable timekeeping for the next six months and he was required to advise management in advance if he knew that he was going to be late.
There were two further incidents in July 2007, which resulted in a first written warning for poor timekeeping, issued on 2 August 2007, which was to remain on his personnel file for the next six months.
On 19 September 2007, a final written warning was issued relating to allegations concerning his driving on the North Western Motorway on 29 August and his lateness for work on 31 August 2007. The warning was expressed to be effective for a period of nine months from 14 September.
On 14 November 2007 it was alleged Mr Mercer was absent from work without notification. Mr Mercer claimed he had notified his team leader in advance and his team leader later accepted responsibility for the incident. However, it was still made the subject of a disciplinary investigation. The parties went to mediation and on 12 December 2007 resolved the disciplinary matter by written terms of settlement which was said to be in full and final settlement of all matters between the parties arising out of the employment relationship between them, up to and including the date of the agreement.
The terms of settlement record, amongst other things, that there was to be a final written warning, no further incidents of misconduct and that all communications regarding absences or lateness were to be made to either the facilities manager or the operations manager, one hour before his start time. The terms of settlement stated: “Failure to meet with these obligations will result in dismissal”. It is to be noted that the terms of settlement do not expressly state how long the final written warning was to remain in force.
The terms of settlement also provided for performance review hui (meetings) to be held at six week intervals with the operations manager and the human resource department, for a period of eight months. These would include completed feedback forms from clients regarding Mr Mercer's attitude and performance for that period.
Mr Mercer was represented throughout the investigation and subsequent mediation by John Minto, a union organiser with the Unite Union, to which Mr Mercer belonged.
A hohou rongo (peacemaking) meeting was held at MTS on 17 January 2008 during which various managers at MTS aired their concerns about Mr Mercer's work and attitude.
A first performance hui was held on 15 February 2008 which demonstrated that Mr Mercer had either “achieved” or “successfully achieved” all of the agreed “expectations” and performance indicators and that there had been positive client feedback. In relation to timekeeping it had been agreed as an expectation that the plaintiff would arrive 15 minutes before his shift to prepare for the day and would check in with management before leaving. If there was to be lateness he was to advise them in advance. It was noted that he had arrived early on most days and had notified management on the odd occasion that he had been stuck in traffic.
The second performance hui took place about 4 April 2008. This records that he had not “achieved expectations” in relation to communications with internal partners or in client feedback. For timekeeping, however, it was recorded that he had achieved, there had been no noted examples of lateness and he was usually early.
On 15 April Mr Mercer received a certificate for successfully completing a training course.
The operations manager, Jason Shazell, spoke to Mr Mercer immediately following an incident on 26 May 2008 when Mr Mercer was late for work by 30 minutes. Mr Mercer explained that this was due to an accident on the motorway. Mr Shazell took the matter no further at that time. On 27 May 2008 Mr Mercer arrived some 1 hour and 45 minutes late for his shift and when the matter was discussed with Mr Shazell shortly after the incident, Mr Mercer advised that he had misread the roster. Mr Shazell took this matter no further at that time. Mr Shazell advised Mr Mercer that the next performance review would be coming up soon. Mr Shazell claimed that on 9 June he verbally advised Mr Mercer that the third performance review would be held on 16 June 2008. Mr Mercer denied receiving that advice. Little turns on the point. However, the third performance hui was not held within the six weeks required by the terms of settlement.
On 13 June 2008 Mr Mercer called the facilities manager, Maawhi Torrance and left a voice message at 7.56am for an 8.15am start, stating that he was sick and would not be coming in. Mr Shazell did not discuss this incident with Mr Mercer at that time.
On the morning...
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