Employment discord claims dismissed

A claim by two South Otago farmers their former employee was overpaid has been dismissed by the Employment Relations Authority (ERA).

AP and AW Hughes Ltd operates a farm near Balclutha and is owned by Tony and Wayne Hughes.

They claimed their former employee, Rachel Johnstone, owed the company various sums of money as a result of her leaving her job.

A counter-claim made by Ms Johnstone that she was unjustifiably dismissed also failedThe authority said Ms Johnstone began working at the farm on June 1, 2011.

She took two weeks' annual leave at the end of July. She told the authority she was given no choice, and claimed she and another employee were approached by Tony Hughes and were told they had to take the leave.

Tony Hughes said he accepted he approached the two and said he asked when they might take their annual leave, following advice given in the interviewing process that two weeks' leave would normally be required before calving in late August.

On July 25, 2011, Ms Johnstone had a serious asthma attack while at her parents' house. She was flown to Dunedin Hospital and spent two days in intensive care before being discharged on July 29.

She advised the Hughes she might be off work for up to six weeks. She returned to work on August 8, working for three days until she had severe chest pain on August 10. A medical certificate cautioned against working more than eight hours each day.

Explanations differed on how and when Ms Johnstone's employment ended.

Ms Johnstone said her father went to the Hughes' farm to provide the medical certificate and talk about her health. She said it was her understanding her father had requested she be allowed to work part-time and this had been rejected.

The next day, she went to work several hours late to talk to Tony Hughes and claimed he became instantly angry. She told the authority the discussion led her to conclude she did not wish to return. She therefore arranged for her parents and brother to remove her property from the house she lived in at the Hughes' farm.

The Hughes claimed Ms Johnstone abandoned her employment when she removed her belongings from the house she occupied on the evening of August 11. Mr Hughes' evidence is he saw her remove her possessions but did not ask why. There was no communication between the parties until Wayne Hughes' letter on September 1. That letter said the Hughes assumed Ms Johnstone had decided to end her employment. The letter did not use the word abandon, nor did a second letter, dated September 25. Abandonment was first mentioned on October 3.

ERA member Michael Loftus said the employment agreement required that the employer inquire as to the employee's circumstances and notify the employee use of the abandonment clause was being considered before it could be applied. The Hughes did not do this, and Mr Loftus found Ms Johnstone did not abandon her job.

The Hughes lodged a claim for money owed and sought repayment for the leave taken in advance but to which an entitlement had never been earned, and an alleged overpayment.

The Hughes' lawyer told the authority that if Ms Johnstone had taken leave, it must, given her short employment, have been leave in advance. Mr Hughes conceded there had been no agreement about leave in advance and he told Ms Johnstone she had to go. The authority found the Hughes were seeking repayment for something they were legally prevented from doing. It also found the claim for an alleged overpayment failed due to a lack of evidence.

Ms Johnstone claimed she was unjustifiably dismissed and disadvantaged, but Mr Loftus found otherwise, stating discussions between both parties were incomplete when Ms Johnstone decided to leave and her decision was influenced by second-hand reporting of a conversation she was not part of.

The authority ruled both the Hughes' claim for repayment of money allegedly overpaid failed, and Ms Johnstone's counter-claim also failed.

Costs were reserved.

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