JurisdictionNew Zealand
CourtEmployment Court
JudgeA D Ford
Judgment Date08 September 2011
Date08 September 2011
Docket NumberWRC 3/11

[2011] NZEmpC 114


WRC 3/11

In The Matter of a Challenge to a Determination of the Employment Relations Authority

LISA Marie Tuapawa
AFFCO New Zealand Limited

Simon Mitchell, Counsel for Plaintiff

Graeme Malone, Counsel for Defendant

Challenge to determination of the Employment Relations Authority — plaintiff claimed unjustifiable disadvantage after receiving written warnings for not working overtime — employer notified employees of required overtime work during Easter week — employee notified manager of her inability to work overtime due to personal circumstances (terminally ill mother) — employer issued two written warning notices to the employee — whether reasonable for employer to issue warning notices — whether employee entitled to compensation pursuant to s123(1)(c)(i) Employment Relations Act 2000 (payment to the employee of compensation by the employee's employer, including compensation for humiliation, loss of dignity, and injury to the feelings of the employee).

The issues were: whether the employer was justified in issuing the written warning notices to T; and whether T was entitled to compensation pursuant to s123(1)(c)(i) ERA.

Held: The test for determining justification under s103A ERA (test of justification) was whether the employer's actions, and how the employer acted, were what a fair and reasonable employer would have done in all the circumstances at the time the alleged personal grievance occurred. The relevant provision in the collective agreement provided that, “workers may be requested to work reasonable overtime”. By implication, the corollary to that proposition would be that an employee had a right to refuse to work unreasonable overtime. The wording of the overtime provision would leave it open to an employee to contend that he or she had the right to refuse to work overtime in circumstances where it would result in the employee working hours that were unreasonable having regard to his or her personal circumstances, including family responsibilities.

In the present case, T was going through a very traumatic period in her life. Her mother was dying and she needed care 24 hours a day. When the workers were told that they would be expected to work 10-hour shifts during Easter week, T acted responsibly. She went to see the production manager the following day, explaining why she would only be able to work nine hours. In other words, T was giving her employer ample opportunity to organise a replacement. The reasons why T was unable to work the extra hours were genuine and compelling.

A fair and reasonable employer would have accepted T's explanation and agreed to her request. Instead, the production manager of the employer was unsympathetic to her situation. His response was not that of a fair and reasonable employer. Accordingly, T was unjustifiably disadvantaged by the issuance of the two warning letters.

There was ample evidence to substantiate a claim for compensation under s123(1)(c)(i) ERA. T appeared to have an exemplary employment record both with this employer and with her previous employer. T would have been quite bereft to have been the recipient of the two unjustified warning letters. The events in question occurred at a very stressful period in T's life. T was therefore, entitled to compensation for the humiliation and injury to feelings which she described.

However T had been told by the production manager to report back to him and the evidence showed she did not do this. Her contributory behaviour towards the situation was assessed at 60%.

Claim of unjustified disadvantage upheld; compensation awarded; contributory behaviour assessment at 60 per cent.



The plaintiff, Ms Lisa Tuapawa, is a meat worker employed by the defendant (AFFCO) at its Wairoa meat processing plant. From all accounts she is a conscientious and reliable worker. Her complaint is that she received unjustified written warnings for not working overtime on 30 March 2010 and 1 April 2010.


Ms Tuapawa commenced proceedings before the Employment Relations Authority (the Authority) claiming that AFFCO had unjustifiably disadvantaged her in issuing the two written warnings. In a determination 1 dated 26 January 2011, the Authority found against Ms Tuapawa and dismissed her claims. She subsequently challenged the whole of the Authority's determination in this Court by way of

hearing de novo. The written warnings had expired at the time of the hearing but the case proceeded, presumably as a matter of principle.

The incidents giving rise to the warning letters occurred in the week leading up to Easter 2010 which, for ease of reference, I will refer to as “Easter week”. Good Friday in 2010 fell on 2 April. The plant does not operate on Good Fridays. There are two aspects to the factual background which assumed some significance at the hearing. First, the requirement for unusual hours of overtime to be worked at the beef plant during Easter week and, secondly, Ms Tuapawa's family commitments in having to look after her terminally ill mother. I will deal with each in turn.

The requirement for overtime

The month of March is apparently a busy time in the meat processing industry. The ordinary hours of work at Wairoa are eight hours a day for five days of the week. The evidence was that in the weeks leading up to Easter week, the plant had been operating nine-hour days during the week and four hours on Saturday mornings, making a total of nine hours of overtime a week.


Mr Darden King, the production manager at Wairoa, told the Court that as they had “abundant stock” to be slaughtered and they were leading into a short week, the company decided to work 10-hour days during Easter week, i.e. two hours overtime per day instead of one. The evidence was that the beef plant had never worked 10-hour days before. Mr King accepted in cross-examination that the beef workers were being required to work “an unprecedented level of overtime”.


The terms and conditions of employment at the Wairoa plant were covered by a collective employment agreement. Clause 10 of the collective provided for overtime and, relevantly, cl 10(e) stated:

It is acknowledged that under this Agreement workers may be requested to work reasonable overtime and shall meet the Company's requirements in this regard.


On the Thursday prior to Easter week, staff were notified at a team briefing that they would be required to work 10-hour days during Easter week. Supervisors were advised that if employees wanted permission not to work the two hours overtime then it would be necessary for them to see either Mr Dean Tucker, the manager of the Wairoa plant, or Mr King, the production manager. Normally, if workers required time off for any reason they would simply ask the supervisor of their respective departments. In this instance the supervisor was Mr Shane Hubbard. It was only if there was a problem in obtaining leave from the supervisor that Mr King would become involved and the evidence was that in such cases the worker and the union delegate, Mr Harry Te Rangi, would both go and see Mr King. Ms Tuapawa told the Court that she had never previously had any reason to go and see the production manager, Mr King.

The plaintiff's family commitments

Ms Tuapawa explained in her evidence how she normally finished her eight-hour shifts between 3.30 pm and 3.45 pm and then she would go home to look after her elderly mother. She said:

  • 4. The background to this matter is that at the time I was living in Wairoa with my sister, along with our sick mother who was 82 years old. My mother had been in very good health until shortly before the events of March and April 2010. Approximately a year before, my mother had suffered a fall. Her health had gone into decline. I produce a copy of a letter dated 25 June 2010 from Dr Witham of the Wairoa Health Care Centre. It sets out that my mother's condition had deteriorated. As a result of my mother's condition, somebody needed to be home with her. She has since passed away.

  • 5. My sister Senga was also employed at the Wairoa works. We worked out an arrangement whereby I worked on the dayshift, and my sister worked on the nightshift. This means that we were able to care for our Mum.

  • 6. My niece had also come back to live in Wairoa to be with us at this difficult time. She was able to care for my mother in the time between the dayshift ending and the nightshift starting when both my sister and I needed to be away from my Mum. However on Tuesdays and Thursdays, due to rugby practice, in April of last year my niece was unable to cover all of this time.

  • 7. I knew that I would have difficulties at the peak of the season working the overtime. At the beginning of the season, I spoke to both my supervisors, Gay and Dave Kelsen, and told them that I did not think I would be able to work the overtime. I explained the situation about my mother. Nobody raised any concern or said that this could not be accommodated.

  • 8. Whanau is important to me. I expected that the Company would appreciate this, and recognise that I am a hard worker, who has always been willing to work as much overtime as possible. I was willing and able to do nine hour shifts. However due to the particular circumstances at the time, I could not do ten hour shifts. I have always picked up all the available overtime.


Against that background, I turn now to consider the relevant facts. The overall evidence presented to the Court was hopelessly confusing and it was quite impossible to reconcile the cases presented by the respective parties.

The evidence for the plaintiff

According to the evidence of Mr Shane Hubbard, the senior supervisor in the beef boning room, everyone, including Ms Tuapawa, was aware that if they were not able to work the...

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