Cannot take retaliatory action against employees for claiming their employment rights

A South Auckland bus company has found itself in hot water with the Employment Court after it dismissed three employees for failing to report for work. The employees were absent because they were prosecuting a claim against the Company in the Employment Tribunal for unpaid holiday pay and other employment entitlements.

V & W Wanoa Coachlines operated a school bus and charter service in South Auckland. It employed Orman Thomas, Haarni Kingi and Laurie Page as part-time bus drivers.

Last year, the three drivers became concerned about their rates of pay and other employment entitlements, including the non-payment of holiday pay. They sought assistance from the National Distribution Union, and eventually filed arrears of wages claims with the Employment Tribunal. The case was set down for a two-day adjudication hearing.

To prove their claims, the drivers had to go to the Employment Tribunal and give evidence. They therefore informed the Company that they would not be coming to work while the hearing was on. The Company responded by advising them that they might not have any jobs to come back to and others might be made casual, on-call contractors if they persisted with their claim. The drivers were undeterred and went to the Tribunal hearing to give evidence.

Almost immediately after the Tribunal hearing and while the Tribunal adjudicator was considering his decision, the Company put into effect what it said it would do. It told the drivers that they were no longer employees but were rather casual, on-call contractors and it would be in touch with them when their services were needed. The drivers were not called on to work again.

The drivers brought personal grievance proceedings against the Company for unjustified dismissal. They also applied to the Employment Court for an interim injunction reinstating them to their former positions until their personal grievances had been heard and determined.

The Employment Court granted the interim injunction and ordered that they be immediately reinstated to their jobs as permanent part-time drivers. Judge Graeme Colgan pointed out that not only did the drivers have an arguable claim for unjustified dismissal, but they also appeared to have been discriminated against in their employment.

Both the Employment Contracts Act and the new Employment Relations Act prohibit employers from taking adverse retaliatory action against employees for claiming their contractual or statutory employment rights. Such retaliatory action constitutes discrimination and can found a personal grievance claim.

More on Termination & Dismissal

An employer's rights: Surfing all the day	Driver lost license
Dealing with absent employees	Importance of procedural fairness
Must consult in redundancy dismissals	Dismissal must be procedurally fair
Misconduct discovered after dismissal	Another procedural fairness example
Dismissed for benefit fraud	Terminated before started
The danger of secret witnesses	Expired employment contract
Cannot intimidate employer	Cannot rely on police enquiry
Reasonable notice of redundancy	Contractural obligation must be met
Reinstatement and workplace democracy	Employment and criminal investigation
Attack not always good defence	Dismissal of persons in authority
Employee responds by going on offensive	Legality of secret video surveillance
ERA classifies contractor as employee	Redundancy law unchanged by ERA
Loss of use of company car	Significant difference
Resolution of criminal charges	Redundancy and changed hours
Discrimination for being non Asian	Cannot take retaliatory action
Failing to meet sales targets	Misconduct outside of work
Abuse of Internet & Email	Suicide and communication
Redundancy definition	Unjustified dismissal for pornography
Abandonment of employment

Alphabetical Index

Case Law