Identidad Espiritual

An employee had a choice of taking a sexual harassment claim or discrimination claim either as a personal grievance under the Employment Contracts Act 1991 or as a complaint under the Human Rights Act 1993.³⁸⁶ Although both the Employment Contracts Act 1991 and the Human Rights Act 1993 provided for complaints of discrimination, the definitions of discrimination varied between the two pieces of legislation.³⁸⁷

Section 64 of the Human Rights Act 1993 stated: ³⁸⁸

Choice of Procedures: Where the circumstances giving rise to a complaint of sexual harassment or racial harassment under the Act are such that an employee may take one but not both of the following steps:

(a) The employee may make, in relation to those circumstances, a complaint under this Act;

or

(b) The employee may invoke in relation to those circumstances, the procedures applicable under the Employment Contracts Act 1991 in relation to personal grievances under the relevant employment contract.

The corresponding section in the Employment Contracts Act 1991 made it clear that once a complaint had been accepted by the Human Rights Commission the employee could not opt to invoke the personal grievance procedure.³⁸⁹ An employer action in breach of s 65 of the Human Rights Act 1993 was capable of establishing a claim for a breach of an

385 Port of Wellington Ltd v Longwith [1995] 1 ERNZ 87, 93.

386 Employment Contracts Act 1991, s 39 (1) and the Human Rights Act 1993, s 64. See also P Kiely,

„Discrimination and Human Rights: An Overview of Remedies‟ (1994) 18 NZJIR 362.

387 See para 2.3.3(c) for discrimination in employment.

388 Human Rights Act 1993, s 64 (a) and (b).

389 Employment Contracts Act 1991, s 39 (2).

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implied term of trust, confidence, and fair dealing in an employment contract in the context of a personal grievance action.³⁹⁰

Under the Employment Contracts Act 1991, it was essential that advocates, unions, and legal practitioners acquired detailed evidence of their client‟s case at an early stage to ensure that the correct procedure had been chosen. This could have caused considerable problems for applicants who, when notifying the employer of a problem, may not have decided on which procedure to follow – that was either to lodge a personal grievance or to make a complaint with the Human Rights Commission. It was possible that at an early stage, the employee may not have taken advice on which process was the most appropriate in the circumstances.

Under the Human Rights Act 1993, the time at which the choice of procedure was made was clear. This was the date when the Complaints Division of the Human Rights Commission accepted the complaint for conciliation or investigation.³⁹¹ However, the point when the personal grievance option was chosen under the Employment Contracts Act 1991 was less clear. In Williams v Air New Zealand,³⁹² the High Court found that it would always be a matter of fact as to when the grievance procedure had been chosen.³⁹³ In Williams, the employee‟s counsel wrote a letter to the employer, with reference to

390 Trilford v Car Haulaways Ltd [1996] 2 ERNZ 351.

391 Human Rights Act 1993, s 12(1).

392 Williams v Air New Zealand Unreported, Salmond J, 10 December 1999, HC, and AP119/99.

393 Ibid.

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clause 4 of the First Schedule to the Employment Contracts Act 1991, alleging that the plaintiff had suffered disadvantage as a result of unjustifiable action by the respondent;

the personal grievance with the company was set out in detail by the appellant and concluded by seeking remedies under s 40 of the Employment Contracts Act 1991.

Salmond J indicated that the First Schedule to the Employment Contracts Act 1991 was the procedure for resolving personal grievances. The making of a complaint to the employer was sufficient to indicate a choice of procedures according to Salmond J.³⁹⁴ In this case, it was also stated that an applicant need not go as far as paying the required fee and formally lodging a claim with either the Employment Tribunal or the Human Rights Commission to manifest a choice of procedure.³⁹⁵

2.4.6 A

LTERNATIVE

P

^ROCEDURES

Alternative personal grievance procedures could be included in employment contracts, provided they were not inconsistent with those contained in the Employment Contracts Act 1991.³⁹⁶ Reasons why parties to employment contracts utilised an alternative procedure included the desire to avoid unnecessary delay, the desire for privacy, if

394 Ibid 8. Salmond J stated that the original submission of the grievance under Clause 2 of the First Schedule to the Employment Contracts Act 1991 was a mechanism to facilitate the resolving of the situation quickly. At this point, this would indicate that this was the first opportunity that the employer had to resolve the situation. If the grievance was resolved at this point, Salmond J believed that it would be inconsistent with the principles of s 39 of the Employment Contracts Act 1991 for there still to be a possibility of action being taken under the Human Rights Act 1993.

395 Ibid.

396 Employment Contracts Act 1991, s 32. See also G J Anderson, „There Must Be a Better Way:

Alternative Dispute Resolution‟ [1997] 2 ELB 21; M Hawkesby, „Alternative Grievance Procedures‟

[1998] 4 ELB 61; P Churchman, „Avoiding the Rigour of the Personal Grievance Provisions of the Employment Contracts Act‟ (1997) 22 NZJIR 171; and N Taylor, „Alternative Grievance Procedures‟

[1998] 4 ELB 61–84.

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particular expertise relating to a specialist type of work was needed, or in some situations to avoid the formalities of the Employment Tribunal procedure or Court.³⁹⁷

A major problem facing some employees under the Employment Contracts Act 1991 was the imposition of „take it or leave it‟ contracts, whereby employers dictated the terms and conditions to be contained in a contract.³⁹⁸ This effectively meant that some employees had no input into which personal grievance procedure was to apply.

Any alternative personal grievance procedure had to be effective.³⁹⁹ An Industrial Relations Service study questioned the effectiveness of some alternative procedures.⁴⁰⁰ It found providing recourse to the Arbitration Acts of 1908 and 1996 was inconsistent with the appeal principles in the Employment Contracts Act 1991.⁴⁰¹

However, in Tutty v Blackmore it was stated that a comparison with the requirements of the First Schedule of the Employment Contracts Act 1991 was not necessary to test the

397 J Hughes, P Roth, G Anderson (eds) Personal Grievances (1999) 2.3.

398 For a discussion on the negotiation of employment contracts, see Tucker Wool Processors Ltd v Harrison [1999] 3 NZLR 576, 593, where the Court of Appeal held that parties were free to proceed on a

„take it or leave it‟ basis.

399 Employment Contracts Act 1991, s 26(a).

400 B Fehan, „Using the Arbitration Act: Procedures in Employment Disputes‟ (1997) Lawtalk 475 (28 April), 7.

401 Ibid, where it noted appeal to the High Court was inconsistent with appeal to a specialist Employment Court. See also J Hughes, P Roth and G Anderson (eds), Personal Grievances (1999) 2.3 and Meredith v Radio New Zealand Ltd [1993] 2 ERNZ 929, 932 for a description of an effective procedure. See also G Anderson, „There Must Be a Better Way: Alternative Dispute Resolution‟ (1997) 2 Employment Law Bulletin 21, who maintained that alternative grievance procedures do not automatically provide an opportunity for employers to by-pass the Employment Tribunal and Court and that all appeal procedures must include access to the Employment Tribunal and Court.

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effectiveness of an alternative procedure, and that an alternative procedure would be effective if:⁴⁰²

a) The process was fair, just, and adhered to the principles of natural justice;

b) The decision contemplated was made on the merits of the case, and was not a capricious decision;

c) The procedure was certain, efficient and just;

d) The body arbitrating was low-level, specialist and informal, and able to provide speedy and fair resolution of differences;

e) Employees were not prevented from using the procedure due to costs;

f) The procedure provided appropriate services which facilitated the resolution of differences;

g) The appropriateness of the procedure would depend on the circumstances and the parties‟

bargaining approaches.

Tutty also suggested remedies available under alternative procedures should not be inconsistent with Part III of the Employment Contracts Act 1991. Provided there was no express prohibition on remedies available, an alternative procedure was deemed effective.⁴⁰³

2.4.7 W

RONGFUL

D

ISMISSAL

The Employment Contracts Act 1991 did not specifically exclude an employee from pursuing a common law claim for wrongful dismissal as an alternative to an unjustified

402 Tutty v Blackmore Unreported, 15 October 1999, AC 38/99.

403 Ibid. See also L Skiffington, „There Must Be a Better Way: Alternative Dispute Resolution‟ [1997] 2 ELB 21–40.

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dismissal.⁴⁰⁴ It was an alternative option for employees who were dismissed, but the cost, length of time and lack of compensation involved, made the procedure prohibitive.⁴⁰⁵ It was also an option if the employee was outside the 90-day time limit. Employees could opt to use both processes, but double recovery was not permissible for the same complaint.⁴⁰⁶

An employee dismissed without cause and without an appropriate period of notice, could have access to a claim for wrongful dismissal.⁴⁰⁷ However, where summary dismissal was justified, no notice was required. In cases of dismissal without notice and without cause, the compensation available would be the amount of money the employee would have received had the appropriate notice period been given.⁴⁰⁸ Payment in lieu of notice prevented an action for damages in wrongful dismissal cases.⁴⁰⁹ If the dismissal was summary in nature and there was insufficient cause for the dismissal, notice was necessary or payment had to be made in lieu.

404 Employment Contracts Act 1991, s 104(f) and (g) confer exclusive jurisdiction on matters „connected‟

with employment contracts or „founded‟ on an employment contract. See Ogilvy v Mather [1993] 2 ERNZ 799.

405 See J Hughes, „The Proposed Abolition of Wrongful Dismissal‟ [1998] 6 ELB 109–132.

406 Sutherland v Marlborough Girls College Board of Trustees [1999] 1 ERNZ 665, 684.

407Addis v Gramophone Co Ltd [1909] AC 488. See also Mazengarb’s Employment Law (1999) III.8; J Hughes, P Roth, G Anderson (eds) Personal Grievances (1999) 12.11; P Bartlett, W C Hodge, P Muir, C Toogood, R Wilson, J Bull (eds) Employment Law (2000) EC27.06.

408 Baker v Denkara Ashanti Mining Corp Ltd (1903) 20 TLR 37.

409 Hartley v Harman (1840) 11, A & E 798.

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An employee could take a dismissal claim without having to wait for the expiry of the notice period.⁴¹⁰ An employee was not required to wait until the expiry date of their employment contract to lodge an action, as to do so could have indicated no loss.⁴¹¹

In wrongful dismissal cases, the onus of proof was on the employee, not the employer, and actual misconduct or some other justification as opposed to reasonable suspicion after fair process, had to be evident.⁴¹²

In wrongful dismissal claims the quantum of damages did not include compensation for procedural irregularities, injury to feelings, and inability to find new employment.⁴¹³ However, in conjunction with a wrongful dismissal action, it was possible to recover for injury to feelings. These claims had to be brought under a general breach of contract action.⁴¹⁴

What was recoverable in wrongful dismissal actions was the amount of remuneration the employee would have earned during the notice period. This amount included all fringe benefits.⁴¹⁵ Damages did not include any money paid to the employee at the time of

410 Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435, 452.

411 Ibid.

412 Federal Supply & Cold Storage Co v Angehern & Piel (1911) 80 LJPC 1, 8, 10.

413 Addis v Gramophone Co Ltd [1909] AC 488.

414 Wheeler v Waitaki Meats Ltd [1991] 2 NZLR 74. See also S Cook, „Extension of Damages in Wrongful Dismissal Claims‟ (1997) 5 ELB 81–96.

415 Bagnall v National Tobacco Corp of Australia Ltd (1934) 34 SR (NSW) 421, 429, per Jordan CJ.

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dismissal or the value to the employee of any remuneration that they could have earned had they taken steps to mitigate their loss.⁴¹⁶

In Air New Zealand Ltd v Raddock,⁴¹⁷ the applicant had been dismissed and claimed breach of an implied term of trust, confidence and fair dealing in the dismissal process.

Thomas J noted what has been traditionally known as „wrongful dismissal‟ is simply one particular example of the „generic breach of contract action‟.⁴¹⁸ Therefore, an implied term could not be inconsistent with an express term of the contract and the majority in the Court of Appeal accordingly rejected Raddock‟s claim.⁴¹⁹ The majority of the Court of Appeal held that an implied obligation of trust, confidence and fair dealing could not be implied into the terms of a contract that expressly allowed termination without cause and with one week‟s notice.⁴²⁰ Thomas J, in a strong dissenting judgment, indicated that the power to dismiss employees only exists alongside the obligation to adhere to the principles of procedural fairness.⁴²¹ Thomas J further suggested that there was an implied obligation of trust, confidence and fair dealing, and in this case that obligation had been breached.⁴²²

416 Shindler v Northern Raincoat Co Ltd [1960] 1 WLR 1038; Yetton v Eastwoods Froy Ltd [1967] 1 WLR 104.

417 Air New Zealand Ltd v Raddock [1999] 2 NZLR 641 (CA).

418 Ibid 659.

419 Ibid 646.

420 Ibid 641.

421 Ibid 659.

422 Ibid.

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The effect of Raddock on an action of breach of an implied term of fair treatment prior to dismissal was unclear.⁴²³ Raddock emphasised the difference between statutory and common-law provisions in relation to wrongful and unjustifiable dismissal claims and the need to comply with the 90-day time limit. Henry J found that the legislature had introduced the concept of justifiability in to the contractual rights of dismissal, however in this case the statutory principles did not apply as there was no attempt to invoke the statutory procedures within the correct timeframe, therefore the common law procedures for wrongful dismissal were the relevant matters to consider.⁴²⁴

A feature of wrongful dismissal claims was that the wrongfully dismissed employees should attempt to mitigate loss.⁴²⁵ In such circumstances, the employee was expected to seek alternative employment, but only for such positions as she/he could reasonably be expected to accept, bearing in mind experience, standing and employment history.⁴²⁶ If a person was offered re-employment and they unreasonably rejected it, they were not then in a position to sue for wrongful dismissal.⁴²⁷ In all such cases, mitigation was a question of fact and the employer had the burden of proof in these circumstances.⁴²⁸

423 Mazengarb’s Employment Law (1999) 1052; P Bartlett, W C Hodge, P Muir, C Toogood, R Wilson, J Bull (eds) Employment Law (2000) EC27.06.

424 Air New Zealand Ltd v Raddock [1999] 2 NZLR 641, 646 (CA).

425 Monk v Redwing Aircraft Co Ltd [1942] 1 KB 182.

426 Edwards v Society of Graphical & Allied Trades [1970] 1 All ER 905.

427 Wilson v Kisri (1900) 18 NZLR 807. See also NZ Fruit & Produce Co Ltd v Taylor (1908) 11 GLR 43.

428 Bagnall v National Tobacco Corp of Australia Ltd (1934) 45 SR (NSW) 430; Yetton v Eastwoods Froy Ltd [1966] 3 All ER 353.

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In summary, a wrongful dismissal cause of action was not usually relied upon due to the limitation on what could be recovered in damages. Re-instatement was not available,⁴²⁹ there were lengthy delays, and the process could be stressful and expensive. For example, no mediation was available to resolve the issues quickly.⁴³⁰

By contrast, an unjustifiable dismissal action under the personal grievance provisions in the Employment Contracts Act 1991 provided easier access, wider remedies, including possible reimbursement of wages lost, reinstatement, compensation for humiliation or loss of dignity and injury to feelings of the employee, and loss of benefit, whether monetary or not and, in sexual harassment cases, „recommendations‟ to the employer regarding the perpetrators.⁴³¹

In document UNIVERSIDAD COMPLUTENSE DE MADRID FACULTAD DE DERECHO (página 39-43)