Employment Update – Week 1, June

Updated: Jun 24, 2019

Cases of Interest

An effective dismissal rather than abandonment of employment

Employers should exercise caution before jumping to the conclusion that an employee who has failed to attend work has abandoned their employment. Good faith obligations require an employer to first make sufficient attempts to contact the employee to determine why the employee has not attended the workplace. A recent decision of the Employment Relations Authority demonstrates how a failure to do so can potentially result in an employee being found to have been dismissed even without the employer advising the employee of dismissal.

After a heated interaction with the employer, the employee had left the workplace in tears part way through her shift. The employer unsuccessfully attempted to contact the employee twice later that day. When the employee turned up to work for her next shift she was sent away as the employer had arranged for a replacement. However, the employer had not intended to dismiss the employee nor permanently replace her, it was only that particular shift. In spite of this, the employee formed the mistaken belief that the replacement had been more the one day and that she had been dismissed.

The employer made no attempts to contact the employee when she failed to attend work at the next subsequent shift. The Authority did not accept it was a situation of the employee abandoning her employment. The Authority observed the employer’s good faith obligations to be active, constructive, responsive and communicative in maintaining the employment relationship. Those obligations meant the employer could not reasonably draw the inference that the employee’s absence indicated an intention to finally end her employment without first making some real attempt to ask her. The Authority considered that speaking to the employee would have removed whatever misunderstanding she must have formed about what being “replaced” that day really meant. Because the employer did not, and the employee stayed away from work because of a mistaken belief she had been dismissed, she was unjustifiably disadvantaged by the employer’s inaction. The Authority concluded that the employer’s failure had the effect that the employer was responsible for ending the employment relationship in a way that a fair employer acting reasonably could not have done in all the circumstances. The Authority considered at law that is treated as a dismissal.

See Shelford v MJ & M Blair Ltd [2018] NZERA Auckland 339.

Court upholds employer’s dismissal of employee with epilepsy

Dismissals for medical incapacity are difficult. Neither the employee nor the employer want to be in a situation where an employee is unable to perform their role, or unable to safely perform it, for medical reasons. Sensitivity and fairness are required to ensure the ending of employment withstands legal scrutiny. What constitutes doing so, however, is not always clear-cut, as can be demonstrated by the fact that the Employment Relations Authority and Employment Court recently came to a different conclusion as to whether an employee’s dismissal was fair.

The Employment Court overturned a decision of the Authority by finding that an employer’s dismissal of an employee with epilepsy for medical incapacity to be justified. The earlier decision of the Authority had found the dismissal to be unjustified: Gillan v Amcor Flexibles (New Zealand) Ltd [2017] NZERA Christchurch 186.

The Authority was drawn in part to its conclusion by the contrasting medical information that the employer had received. A neurosurgeon advi