Employee reinstatement a surprise for workplace

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This is an important case where the employee was granted interim reinstatement without the employer being informed of the hearing or having an opportunity to defend it.

Ms Eder-Entwistle was working 20 hours a week as a salon assistant at a hairdressing boutique when she got pregnant. Towards the end of her parental leave there was a text exchange where she advised her employer that she was ready to return to work and was told that business was slow and they couldn’t employ both her and her replacement.

Since 1987 the Parental Leave and Employment Protection Act (the Act) has required employers to keep a woman’s job open when she went on parental leave. Some employers have found this very difficult to honour at times, but there is no excuse at all for an entry level position to be permanently filled in these circumstances.

The Act contains a most unusual provision, that the woman can make an ex parte application for a hearing for interim reinstatement to her job. (It appears that this is the first time the provision ex parte has been used in the 30 years the Act has been in force.) The Authority first looked at whether it should grant permission for the application to be heard without the other party being able to put their case. It concluded that Parliament included the provision ‘to protect vulnerable women, who might still be waiting to give birth, or else be dealing with the earliest stages of motherhood’. It also concluded that the wording of the Act required the Authority to hear it ex parte if the woman so applied.

The Authority found that the employer’s refusal to allow Eder-Entwistle to return to work amounted to a dismissal. The usual tests to assess whether interim reinstatement were applied: is there an arguable case? If so, is there an adequate alternative remedy available to the applicant? Where does the balance of convenience lie? What is the overall justice of the case?

In reviewing the overall situation, the Authority commented: ‘A contentious matter exists…and that will leave to a strained relationship and stress. That is often the case in such matters, but does not necessarily mean that reinstatement is not appropriate. Once reinstated, the parties must be “active and constructive in establishing and maintaining a productive employment relationship”…They will also be directed to participate in mediation in good faith.’

An interim order for reinstatement was made and will remain in place for six months. It is expected that the substantive matter would be resolved in this time.

It is easy to imagine the absolute shock the employer experienced on receiving the order and the ensuing tension in the workplace.

There is also a short case on a frequently asked question about enforcing “no disparaging comments” in mediated agreements.

Wanaka Sun (2003) Ltd v Woodrow
When an employment relationship ends badly the parties often end up in mediation. Most mediation agreements contain some wording that the parties agree not to make any disparaging comments about the other. Clients frequently ask if it is worth enforcing the clause for what are normally minor but irritating breaches.

In this particular case, the Wanaka Sun (the Sun) is a free community newspaper that relies on advertising revenue. When Ms Woodrow left her job at the Sun, they reached a mediated settlement that included a fairly standard clause that ‘the parties agree they shall not make derogatory comments about each other to any other person or organisation.’ Woodrow got a new job and made derogatory comments to a former Sun colleague about the Sun and its owner. The former colleague reported the comments back to the owner.

The owner sought to have a penalty imposed on Woodrow for breach of the agreement. The Authority didn’t agree that Woodrow had used abusive comments or expletives, but found that she had described the Sun as being ‘a stressful place to work’. It concluded that ‘it was possible to infer disparagement from the comment, because it could imply mismanagement, overloading of work, understaffing, bullying and so forth’. He distinguished between this situation and workplaces that are inherently stressful, like emergency services.

Based on the minor nature of the comments and the admission from the Sun that there was no damage, a penalty of $250 was imposed on Woodrow and was to be paid to the crown – not to the Sun. It was as hollow victory that hopefully stopped the disparaging comments, but was it worth the time and effort?

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Anne Aitken

Anne Aitken is a highly experienced Human Resources professional who focuses on helping employers strengthen their organisations through working with their people. email: anne@anneaitken.co.nz | www.anneaitken.co.nz

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