MacGregor v Corboy Forest Management Limited

Time and again I read cases where the employer has just ignored the Employment Authority and it has come back to bite them. It can be a deliberate strategy to contain losses, if you don’t have a leg to stand on, as you are not adding to your costs with legal bills. However the employer can mitigate their losses by representing themselves to have their side of the story heard.

Mr MacGregor started as a truck driver for Corboy in January 2015 and signed his employment agreement on a couple of weeks later. The employment agreement included a 90 day trial period.

On 9^th March, MacGregor advised the office manager he wanted a day’s annual leave on 28^th March to attend a wedding (a Saturday). She acknowledged the request and he heard nothing further until the day before the wedding when he reminded his boss he would be away the next day.  That evening he received a text message from his manager stating that he was expected to start work at 4am the following morning. A series of messages between the pair ensued and the outcome was that MacGregor was told that there was no work from him on Monday if he did not turn up on the Saturday because the manager would have the truck.

MacGregor was concerned for his position at Corboy so went into the office on the Monday to try and resolve the situation with his manager. Both the truck and the manager were not on site but were at his house, which was adjacent to the depot. The manager initially did not respond to MacGregor’s texts and eventually, told him that there would be no work for MacGregor on Tuesday because the truck would be in the workshop. MacGregor turned up on the site on Tuesday to see the truck sitting in the yard and he was advised it had been sitting in the yard all day on Monday.

MacGregor made repeated attempts to communicate with the manager to resolve the situation but kept being ignored. He very efficiently lodged a personal grievance for constructive dismissal the next day.

Corboy refused to attend mediation on the basis that there was no right to a personal grievance under the trial period provision. By taking this stance, the manager was giving up the first (and cheapest) opportunity to mitigate the damage from his earlier actions. The Authority later directed the parties to mediation but they did not settle.

Corboy initially cooperated with the Authority investigation by sending a response to the Authority when the grievance was raised, but then refused to respond to further communications. It therefore gave up the opportunity to challenge the information put forward by MacGregor, which could have made a significant difference to the result.

The Authority found that the trial period was void because the employment agreement was not signed before the employment commenced. It also found that MacGregor’s manager had ended the employment relationship or at least it was foreseeable that he would resign (which is a test for constructive dismissal) from the text messages that were sent between them. Therefore finding that MacGregor had been unjustifiably dismissed.

It is an interesting conclusion to reach as it is normal for the Authority to be more definite that the dismissal was an actual dismissal or it was a constructive dismissal, not that it could be one or the other.

MacGregor was awarded $16,548 for hurt and humiliation, lost wages and to cover his legal costs. The Authority commented that the level of award for his legal costs was higher than usual as a result of how Corboy conducted its case. What’s more, had MacGregor been out of work for longer than 12 days, the costs would have been much higher.

This situation never needed to happen and when employers find it so hard to get good, enthusiastic workers it is a waste to lose them in this way. The manager needed to take a step back and think about what was in the long term best interests of the business. We all get frustrated with our team from time to time and that is when we need to take advice on the best way forward, express our frustration and get on with doing the right thing.

Anne Aitken, HR Professional, anne@anneaitken.co.nz