Ugone complained to the Employment Relations Authority [ERA] that he was unjustifiably dismissed, wanting compensation for lost wages and hurt and humiliation.
He also claimed Star Moving breached the Employment Relations Act 2000 by failing to provide him a copy of his Individual Employment Agreement [IEA], and penalties should be imposed.
Ugone began working for the company in 2017 as a driver but was approached by Star Moving director Stuart Biggs to take on the role of operations manager, which he did in July 2018.
ERA member Rowan Anderson said in his determination released this month that Star Moving did not contest Ugone was dismissed until a hearing in September last year.
Biggs claimed Ugone’s role was “disestablished”, there was a redundancy, and that Ugone was not dismissed and couldn’t work because of an injury.
The August 14 letter about Ugone’s role being disestablished explained the company wanted to consider him for a new role as a driver, Biggs said.
The letter sought an indication of when he would be returning to work in full health and asked him to return the company phone.
Anderson ruled the letter amounted to a dismissal which he considered any reasonable person would have believed.
“Whilst it purported to seek feedback as to an alternate position, it did so in the context of having, absent any consultation, advised Mr Ugone that his role had been disestablished.”
Biggs told the hearing Star Moving made it clear it would accommodate Ugone in another role without financial disadvantage but when questioned Biggs claimed there were discussions he “wanted to have” with Ugone.
He was also unable to explain why he or Star Moving made no attempt to contact Ugone about the letter.
Star Moving claimed it wanted to engage with Ugone about concerns with his absence from work and Biggs alleged he made fair and reasonable attempts to do so, however, no records of the communications or attempts to call or contact Ugone were produced.
“Star Moving had every opportunity to provide such evidence to the Authority but did not do so,” Anderson said.
“Mr Biggs’s evidence, to put it bluntly, does not stack up.”
Anderson found Biggs’ explanations implausible and while there was a vague offer made about the possibility of an alternate role, the company had clearly ended the employment relationship by advising Ugone his role had been disestablished and in asking him to return the company phone, the member said.
Ugone gave evidence he was never provided any further information about the alternative position, there was no discussion about pay and he was not provided with a draft individual employment agreement or any other documentation relating to the role.
Anderson found Ugone had been dismissed and the onus was on Star Moving to justify its actions.
He did not accept Biggs’ evidence he had tried to contact Ugone to discuss the restructuring.
“No records have been produced by Star Moving evidencing any relevant attempts to contact Mr Ugone, nor were any such attempts mentioned when Mr Ugone was dismissed.”
Illness or injury may justify an employee’s dismissal in circumstances where the employee is prevented from carrying out their duties for an indefinite period, Anderson noted.
Ugone kept the company updated with his progress, including by providing information from medical practitioners and ACC, and gave evidence he was told there were no light duties that he could perform.
Anderson said Star Moving did not seek further medical information about Ugone’s expected recovery time or a date when he could expect to return to work on full duties.
“Indeed, I find that if Star Moving had taken appropriate steps, it would have been clear that Mr Ugone could have returned to work and performed, at the least, most of his duties.”
Anderson ruled the dismissal was a reaction to Ugone’s ACC Medical Certificate and Star Moving did not consult with Ugone about the purported restructuring, and did not consult with Ugone regarding the proposed alternative role.
“No concerns were raised with Mr Ugone prior to the dismissal, no opportunity was provided to Mr Ugone to respond to Star Moving’s purported concerns as to his absence from work, and there was absolutely no consultation or notice given to Mr Ugone that his position might be disestablished.
“These were significant failings and because of them, Mr Ugone was not able to provide feedback on any proposal nor to have any possible feedback considered by Star Moving.”
The company was ordered to pay Ugone $13,090 for lost wages as a result of the grievance and because he had suffered significant loss as a result of the dismissal a further $13,090 remuneration, plus additional holiday pay of eight per cent, and $842 for the employer Kiwisaver contribution on the lost remuneration.
The amounts totalled $29,123.
The dismissal left Ugone shattered, feeling undervalued, and as if he had lost himself. He had enjoyed his work greatly and following the dismissal he felt depressed and unappreciated, he said in evidence.
Anderson accepted Ugone’s evidence and found he suffered a severe impact to his self-esteem, confidence, and self-worth.
“Mr Ugone was blamed for having to take time off work to recover from a workplace injury.”
He awarded compensation of $27,500 for humiliation, loss of dignity, and injury to feelings.
The ERA also imposed penalties on the company of $6000, with $4000 to be paid to the Crown and $2000 to Ugone.
When contacted by NZME Biggs said he disagreed with the decision labelling it one-sided and said he planned to appeal.
Attempts to contact Ugone’s lawyer for comment went unanswered.
