The case of the missing origami cranes?

Good communication with staff is fundamental to achieving the obligations of good faith which underpins the Employment Relations Act 2000. Respect for all employees and their needs and sensitivities in the workplace is essential for a productive and happy workplace. This applies on an everyday basis, but is even more important when managing performance concerns with an employee. 
A recent Employment Court case demonstrates this. In Maddern v Worldxchange Communications Limited, the Employment Court considered a case for unjustified disadvantage brought by Mr Maddern on the grounds that he believed he had been subjected to a prolonged and focused campaign of harassment which took the form of vandalism of artwork on his desk. His grievance also included a concern about how the operations manager for the company had spoken to him about the artwork. 
The artwork in question comprised approximately 300 to 400 origami cranes (ie birds) made out of coloured memo cube paper. 
The employee, during the course of his employment, was given a number of warnings relating to his performance, and was ultimately dismissed. The Employment Relations Authority found that the dismissal was justifiable. This aspect of Maddern’s complaints was not taken further to the Employment Court. The Court only considered Maddern’s claim that he had been unjustifiably disadvantaged in his employment.  
What is an unjustified disadvantage claim? 
Even if a dismissal is justified, an employee may still have a legal claim arising from the actions of the employer during the course of the employment relationship. The Employment Relations Act 2000 provides that an employee will have a personal grievance if:
• “the employee’s employment, or one or more conditions of the employee’s employment is affected to the employee’s disadvantage by some unjustifiable action by the employer.” 
Unjustified disadvantage claims have taken on more importance since the introduction of the 90 day trial period. A properly executed trial period clause in an employment agreement prevents claims being brought for unjustified dismissal but still allows employees to bring unjustified disadvantage claims.  
The factual scenarios that might support such a claim are varied. Employees might rely on a clear breach of contractual terms or a failure to follow company policies. Quite commonly there are issues relating to communication, or employees may claim that they have been bullied, harassed or intimidated in their workplace.
The facts in the Worldxchange case were that Mr Maddern had started making two or three origami cranes each day. The cranes soon built up and he created an art installation of the cranes on his desk. He was later subjected to interference with his artwork. He would come to work in the morning to find his cranes had been scattered all over his desk, and sometimes stolen. Maddern made a complaint about this interference which was investigated by the company. 
One day a manager put a note, in full public view, on the crane installation saying “there will be no more of this until you start paying for the paper”. The manager mistakenly assumed that he wasn’t paying for the paper when in fact he was. Maddern wrote a note on the other side of the paper saying he was paying for the paper and handed it to the manager. The manager than expressed disbelief and twice asked him if he was telling the truth.  
The manager smiled, screwed up the note and left without another word. The manager never apologised, and Maddern’s complaint was partly about this exchange. 
While the company made some attempts to resolve Mr Maddern’s concerns, including having a meeting to discuss the complaints, ultimately the company did not accept this was a harassment situation. 
The Court found that the employer had taken appropriate action to deal with the complaints about interference with the cranes when they had been scattered across his desk in a malicious way.  
However, regarding the second aspect of the complaint, the Court found that the actions of the manager were not the actions of a fair and reasonable employer. Maddern had a valid personal grievance for unjustified disadvantage.  
The manager should have discussed his concerns about Maddern’s origami hobby in private. It was noted that Maddern was already suffering some stress due to a performance management process. He did not need the added stress of the treatment he received regarding the cranes. The company’s response to Maddern’s legitimate concerns was inadequate and he was awarded compensation of $3000.
This case highlights the need for careful and proper communication with staff. Maddern had a considerable attachment to his artwork and he deserved some respect. It is worth remembering too that all employees from the shop floor to management come to work with their own idiosyncrasies, and they are a very real part of what makes life interesting.   
Jo Douglas is managing solicitor at EMA Legal.