Worker disputes employer treatment over excessive hours and missing pay evaluations

The Employment Relations Authority recently dealt with a workplace grievance case where a material engineer and driver challenged his employer's treatment during his employment, claiming he was forced to work excessive hours and denied promised pay reviews.

The worker raised multiple complaints including being required to work overtime without agreement, and being given responsibilities outside his job description, among others. He eventually resigned and claimed constructive dismissal.

The employer denied all allegations and disputed the worker's claims, arguing that any additional work was part of his role requirements and that proper health and safety standards were maintained throughout his employment.

Workplace grievance involves overtime, pay disputes

The worker was initially employed as a truck driver in March 2022 by a freight and concrete company before being promoted to material engineer and driver in August 2022.

This new role involved responsibility for concrete production and delivery, requiring him to manage the concrete plant and batching operations.

The promotion came after the previous concrete plant manager resigned, and the worker had shown interest in batching and producing concrete during his truck driving duties.

As part of negotiations for the new role, discussions occurred about working hours, with the worker expressing reluctance to work weekends due to building a house.

A compromise was reached where the worker "accepted he may have to work additional hours in excess of the minimum 40 per week but this would be by agreement, and [the worker] would be paid time and a half for hours worked over 40 per week." This arrangement was recorded in the individual employment agreement, establishing clear parameters for overtime work.

Workplace grievance centres on forced overtime hours

The worker argued he was required to work excessive hours without genuine agreement, claiming he felt threatened after an incident on 1 July 2022.

The company had been contacted by a client requesting drivers for emergency slip work on a Saturday, but had not organised sufficient drivers by 5:30 pm on Friday.

When the company director approached the worker to do this work, "knowing it was the first Saturday [the worker] had been asked to do, [the director] thought this was reasonable, although he did expect [the worker] to refuse."

The worker initially refused but felt pressured when the director reminded him of his employment agreement obligations and mentioned the company's support of his work visa.

The Authority found that while this "threat" was never intended by the company and was "a product of frustration," the subsequent working arrangements were problematic. Time records showed the worker "often worked more than 40 hours per week including work on 12 Saturdays" as material engineer and driver.

The Authority concluded that "if additional work was required in terms of batching and pouring concrete then [the worker] was the only employee who could do it" meaning he "really had no element of choice in terms of working in excess of 40 hours per week."

Workplace grievance includes remuneration review failures

The employment agreement contained specific obligations for the company to review the worker's remuneration on two occasions.

The first review was required after a three-month probationary period with a possible wage increase specified if certain conditions were met. The second review was to occur annually from the agreement's anniversary date.

Neither formal review took place during the worker's employment. The company argued that probationary period requirements had not been met, so the first review obligation was not triggered.

For subsequent requests, the company said it "considered each request but did not feel [the worker's] performance warranted an increase in his wages and he was told this."

The Authority found this approach insufficient, stating that "the review at the end of the probationary period needed to be completed with [the worker] to review the probationary period and assess if he should receive the proposed increase in his wage."

The Authority emphasised that the obligation was not simply for the company to conduct a unilateral assessment without engaging the worker, as the annual review needed to address "not only remuneration but conditions of employment and performance."

Workplace grievance claims dismissed on safety grounds

The worker raised numerous health and safety complaints including insufficient training, exposure to dust and hazardous chemicals, inadequate personal protective equipment, structural faults in the concrete plant, lack of ventilation, excessive vibration, unsafe driving in the company yard, and hazardous obstacles on site.

The company strongly denied these allegations, pointing to its commitment to health and safety evidenced by policies, procedures, safety requirements, and excellent results in annual audits achieving gold standard compliance.

The Authority found that "the issues with health and safety that concerned [the worker] were largely issues he perceived, subjectively" and that "an objective assessment does not support [the worker's] assessment."

Specific findings included that the worker was adequately trained by the company, sufficient and compliant personal protective equipment was provided with additional steps taken for the worker's specific needs, and no problematic issues existed with the concrete plant.

The Authority noted that while concrete work is inherently hazardous due to dust and noise, and the plant was old, "sufficient steps were in place to mitigate any issues, including provision of PPE, ventilation and ongoing maintenance."

Is it unjustified dismissal?

The Authority found that two of the worker's complaints were justified - being required to work over 40 hours per week without agreement and the company's failure to conduct required remuneration reviews.

However, the Authority determined these breaches were not sufficiently serious to constitute constructive dismissal, finding it was not "foreseeable that [the worker] would resign in response to the breaches."

The worker was successful in establishing personal grievances for unjustified action causing disadvantage related to both proven complaints.

The Authority assessed compensation by considering "the humiliation, loss of dignity and injury to feelings that [the worker] suffers as a result of the unjustified actions," specifically identifying "humiliation at not receiving a remuneration review" and "loss of dignity through lack of control over the hours he had to work."

The Authority concluded: "This harm and loss is consistent with the lower-level harm and loss suffered by those who are subjected to unjustifiable actions by their employer. In the circumstances I quantify the compensation to be $14,000."

Additionally, the Authority found that a $2,207.70 deduction from the worker's final pay for training costs under a bonding agreement was lawful, as the agreement was valid and properly authorised the deduction.

The Authority stated: "[The employer] acted unjustifiably toward [the worker] by requiring him to work more than 40 hours per week and by not reviewing his remuneration as required under the [employment agreement]."