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New Zealand Tramways and Public Transport Employees Union Inc & Anor v Transportation Auckland Corporation Ltd & Anor
CA 287/06
Heard: 12 Mar 2007, Wellington
Judgment Date: 3 Apr 2007
Court/Authority/Tribunal: Hammond, Arnold and Wilson JJ
Appearances: P Cranney; PA Caisley
COURT OF APPEAL – Practice and procedure – Application for leave to appeal Employment Court decision – ss 6, 41 Holidays Act 2003 – Collective employment agreement provided three weeks annual holiday plus further holiday of one week – Minimum statutory entitlement was to increase from three weeks to four weeks per annum – Employment Court held extra week was an enhancement of minimum entitlement rather than separate entitlement – Collective employment agreement met obligations under s41 Holidays Act 2003 – HELD – Whether additional holiday absorbed by or additional to minimum entitlement an important question of law – Application granted – Bus drivers
This was a successful application for leave to appeal an Employment Court decision (see: 27 November 2006, AC 61A/06).
The proceedings concerned the annual leave entitlements of bus drivers who were members of the applicant unions. The collective employment agreement (“cea”) provided each employee with the minimum statutory entitlement of three weeks annual holiday plus “a further holiday of one week per annum in recognition of the nature of the work making a total of four weeks leave per year”.
From 1 April 2007 s41 of the Holidays Act 2003 increased the minimum statutory entitlement to annual holidays from three weeks to four weeks. The issue was whether the cea allowed for the extra week of holiday to continue from 1 April 2007 over and above the minimum statutory entitlement. In other words, whether the present four weeks provided in the cea became five weeks.
The Employment Court held that the extra week was an enhancement of the minimum entitlement rather than a separate entitlement. From 1 April 2007 the cea would still provide four weeks annual leave, which would accord with the minimum statutory entitlement.
The applicants submitted that whether additional holidays agreed to be in recognition of the nature of work were absorbed by or in addition to minimum annual leave conferred by the Holidays Act 2003, when such leave moved to four weeks was a question of law of general or public importance.
The respondent submitted the question was one of fact and not one of public importance.
Held
(1) Leave to appeal was granted on the question of “whether additional holidays which are agreed to be in recognition of the nature of work are absorbed by or in addition to minimum annual leave conferred by Subpart 1 of Part 2 of the Holidays Act 2003, when such leave moves to four weeks from 1 April 2007?” Central to the Employment Court’s decision was the interpretation of the Holidays Act 2003, in particular s6. The appeal raised a question of law concerning the proper interpretation and application of the Act. The issue was an important one. It would affect other employers and employees. Its importance was reflected in the fact that the Employment Court sat as a Full Court to hear the case. (para 6)
Result: Application granted (leave to appeal) ; Costs in favour of first and second applicants ($750 each plus disbursements)
Statutes considered:
ERA s214(1)
ERA s214(3)
Holidays Act 2003 s6
Holidays Act 2003 Part 2 Subpart 1
Cases referred to in judgment:
New Zealand Tramways and Public Transport Employees Union Inc & Anor v
Transportation Auckland Corporation Ltd and Cityline (New Zealand) Ltd
unreported, Judges Travis, Shaw and Perkins, 27 November 2006, AC 61A/06
Other workers/site names etc: National Distribution Union Inc; Cityline (New Zealand) Ltd
Pages: 2
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Kingi v Responsive Maintenance 2000 Ltd
AC 18/07
Heard: 19 Apr 2007, Auckland
Judgment Date: 19 Apr 2007
Court/Authority/Tribunal: Perkins J
Appearances: O Kingi (in person); M Rush
PRACTICE AND PROCEDURE – Application to strike out challenge to Employment Relations Authority determination – First hearing unable to proceed because of bereavement in plaintiff’s family – Matter adjourned – Parties agreed to mediation held at marae – Mediation did not occur – Defendant brought strike out application – First hearing of application adjourned because plaintiff was having difficulties with his advocate regarding instruction and representation – Defendant submitted it had suffered prejudice from delay – HELD – Defendant must show plaintiff guilty of inordinate delay, that delay inexcusable, and that it had suffered serious prejudice as result of delay – Court must ultimately consider interests of justice – Proceedings should not be struck out lightly – Plaintiff had rights of challenge and pursued matter within set timeframes – Delay unfortunate and unacceptable, but not inordinate – Balance of overall justice in plaintiff’s favour – Plaintiff should not be deprived of day in Court – Any further delay on plaintiff’s part would be fatal – Application dismissed
This was an unsuccessful application by the defendant to strike out the plaintiff’s challenge to an Employment Relations Authority determination.
The plaintiff was employed by the defendant. An incident took place at the premises of a local hardware store. The defendant subsequently terminated the plaintiff’s employment.
The Employment Relations Authority determined that the plaintiff was unjustifiably dismissed, but because of his own conduct he was not entitled to any remedies.
The plaintiff brought a challenge against that determination.
The proceedings were set down for hearing before the Employment Court. At the last minute the hearing was adjourned due to a family bereavement suffered by the plaintiff. There was a suggestion that the parties may be able to mediate the problem by using the facilities of a local marae. No further action was taken.
The defendant applied to strike out the proceedings. The first hearing of the application, although commenced, was adjourned because the plaintiff was having difficulties instructing his advocate.
When the hearing recommenced, the plaintiff informed the Court that he had been unsuccessful in his attempts to find alternative representation.
The defendant submitted that the delay was inexcusable, that it had suffered prejudice, and that it was unreasonable and unfair that the matter be prolonged without good cause. In the interests of justice it was time for the proceedings to be dismissed.
Held
(1) The principles to be applied in strike out applications are well-established. The applicant for the strike out must show that the plaintiff has been guilty of inordinate delay, that such delay is inexcusable, that there has been serious prejudice to the defendant applicant as a result of the delay, and that even though these factors may be established, ultimately the Court must have regard to the interests of justice in determining whether proceedings should be struck out. (para 7)
(2) An important consideration was that the Court should not strike out proceedings lightly because that would then deprive a party, who was wanting to proceed, from having their day in Court. (para 15)
(3) The plaintiff had rights of challenge to the determination of the Authority and he had pursued that matter within the timeframes, which were set under the Employment Relations Act 2000. (para 15)
(4) It was clear there had been a delay which was unfortunate and unacceptable, but the delay had not been inordinate. From the time of a submission or referral of a grievance a grievant has 3 years in which to commence proceedings. The plaintiff commenced proceedings within a very short time of submitting the grievance but the fact of the matter was that having submitted the grievance, the 3 year period which he would have had to have commenced the proceedings was still running. That was a material matter to be taken into account, not only in regard to whether the delay was inordinate but also the overall justice of the matter. (para 16)
(5) There was always prejudice suffered by delay. There would always be an argument that such delay would result in the dimming of memory of witnesses. The witnesses may not be available and that would have been the same circumstance if the plaintiff had not commenced his proceedings immediately, but had chosen to wait until near the end of the 3 year period before commencing the proceedings. (para 18)
(6) The plaintiff, as a result of difficulties, which he had experienced with his advocate, and as a result of the bereavement, which was not his fault and which led to the first hearing being adjourned and despite being a layman and not understanding that he must be proactive about trying to get a fixture from the Court, nevertheless tipped the balance of overall justice in his favour. However, the matter had been finely balanced and the plaintiff needed to understand that the present was the last opportunity to get the matter resolved because a further application, which arose from any further delay on his part, would surely lead to the proceedings being struck out at that point. (para 19)
(7) The matter was to be heard in Auckland. The registrar was to allocate a hearing and there were to be no adjournments of that hearing. The matter was also referred to mediation, which was to take place before the date allocated for trial. (paras 20, 21)
Result: Application dismissed; Orders accordingly; Costs reserved
Statutes considered:
ERA
Pages: 3
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Air New Zealand Ltd v McAlister
CA 278/06
Heard: 16 Apr 2007, Wellington
Judgment Date: 20 Apr 2007
Court/Authority/Tribunal: O'Regan, Robertson and Wilson JJ
Appearances: AH Waalkens QC, KM Thompson; RE Harrison QC
COURT OF APPEAL – Application for leave to appeal Employment Court decision – Applicant employed respondent as pilot in command and flight instructor – When respondent turned 60 he was removed from flight instructor position and under protest was made first officer – Reason given by applicant was that international regulations prohibited pilots aged 60 or over from acting as captain or pilot in command – Employment Court held applicant discriminated against respondent by reason of age in breach of s104(1)(b) Employment Relations Act 2000 (“ERA”) and had acted unjustifiably to his disadvantage – Leave sought on six questions of law – HELD – Interpretation of s104 ERA and in particular the phrase “by reason directly or indirectly of” was a question of law of general importance – Three subsidiary questions included to ensure all relevant issues considered – Leave to appeal also granted regarding effects of alleged errors on Employment Court’s finding that applicant’s actions were unjustified – Application granted – Pilot/flight instructor
This was a successful application for leave to appeal an Employment Court decision (see: (2007) 8 NZELC 98,591).
The applicant employed the respondent as a pilot and flight instructor. For most of his work the respondent was required to be a pilot in command. When the respondent attained the age of 60 he was moved by the applicant from his position as flight instructor, ceased to hold the rank of captain and under protest was made first officer. The explanation provided by the applicant was that international regulations prohibited pilots aged 60 or over from acting as a captain or pilot in command.
The respondent brought a successful personal grievance in the Employment Court. The Court held that in removing the respondent from his former position because of his age the applicant had discriminated against him to his detriment. Furthermore, that the applicant had acted unjustifiably towards the respondent by applying a fixed policy to him that was discriminatory and affected his employment to his disadvantage.
The applicant sought leave to appeal the Employment Court decision on six questions of law.
Held
(1) The matter was basically one general issue: the proper interpretation of s104 Employment Relations Act 2000 (“ERA”). (para 3)
(2) The interpretation of s104 ERA and in particular the phrase “by reason directly or indirectly of” was a question of law of general importance. The first two questions raised could be appropriately framed in one question: Did the Employment Court err in law in concluding that the demotion of the respondent from his flight instructor position occurred by reason directly or indirectly of a prohibited ground of discrimination, namely his age, in terms of s104(1) ERA? (para 12)
(3) Three subsidiary questions were included by agreement of counsel to ensure all relevant issues were considered. Those were: (a) Was there any evidence to support the Employment Court’s finding that it was unacceptable to compare the characteristics of the respondent which he had after the alleged discriminatory act with those of unaffected employees – the appropriate comparison being between the conditions of work of the employee after the changes made by reason of his age and other employees who were not affected by age restriction? (b) Did the Employment Court err in law in defining as the relevant comparator group for the purposes of ss104(1)(a) and (b) ERA those flight instructors who were under 60 but were doing work of the same description that the respondent was doing before reaching that age?
(c) Did the Employment Court err in law in concluding that being of a particular age (here, under the age of 60) was not a genuine occupational qualification for the respondent’s position of or employment as a flight instructor, in terms of s30(1) Human Rights Act 1993? (paras 13, 14)
(4) Leave was also granted as to the effects of the alleged errors on the Employment Court’s finding that the applicant’s actions were unjustified. (para 14)
Result: Application granted (leave to appeal); No order for costs
Statutes considered:
ERA s104
ERA s104(1)
ERA s104(1)(a)
ERA s104(1)(b)
ERA s214
ERA s214(3)
Human Rights Act 1993 s30(1)
Court of Appeal (Civil) Rules 2005 R38
Court of Appeal (Civil) Rules 2005 R40
Cases referred to in judgment:
McAlister v Air New Zealand (2007) 8 NZELC 98,591
Pages: 2
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Woud v Department of Corrections
AC 25/07
Heard: 5 Feb 2007, Auckland
Judgment Date: 15 May 2007
Court/Authority/Tribunal: Travis, J
Appearances: R Harrison; R Chan
PRACTICE AND PROCEDURE – Application to strike out plaintiff’s application for compliance and declarations – Plaintiff successfully challenged Employment Relations Authority determination – Court awarded increased remedies and reinstatement – Defendant paid remedies awarded less amounts already paid under Authority determination – Plaintiff sought Court remedies in full and declaration as to continuing annual leave entitlements – Defendant submitted application was abuse of process – Estoppel – Res judicata – Against interests of justice – Plaintiff dismissed prior to Employment Relations Amendment Act (No 2) 2004 coming into force but Court decision delivered after its commencement – Effect of section 183(2) Employment Relations Act 2000 (“ERA”) – HELD – Arguable that insertion of s183(2) ERA was purely procedural and would apply in present case –Implicit in unamended s183 ERA that Court decision set aside Authority determination – Court’s substantive decision not intended to provide reimbursement in addition to Authority’s award – Matter of accrued leave was res judicata – Defendant’s application to strike out granted – Prison Officer
This was a successful application to strike out the plaintiff’s application for a compliance order and declaration.
The plaintiff was employed by the defendant as a prison officer. He was dismissed for an alleged failure to carry out patrols and inmate muster checks to required standards and for failing to discover a prison inmate's suicide earlier.
The plaintiff brought a partially successful personal grievance. The Employment Relations Authority found that whilst there had been serious misconduct the dismissal was vitiated by disparity of treatment and awarded remedies. The defendant paid the remedies owing in full.
The plaintiff successfully challenged that determination ([2005] 1 ERNZ 314). The Court found that the plaintiff’s conduct was not serious misconduct warranting dismissal and that there was disparity of treatment. The Court awarded increased remedies and reinstatement.
The defendant paid the sums awarded by the Court less the sums already paid pursuant to the Authority’s award.
The plaintiff applied for a compliance order requiring payment of the Court award in full. He submitted that the amounts ordered by the Court were intended to be in addition to the amounts awarded by the Authority. He also sought a declaration that accrued annual leave be added to his annual leave entitlement for the period from his summary dismissal to the date of his reinstatement.
The defendant sought to strike out the proceedings as an abuse of the process. It submitted the Court’s remedies were intended to be in substitution of the Authority’s award. Further, that the doctrine of res judicata applied to the question of annual leave entitlements. The Court was functus officio and could not re-determine the remedies contained in the original judgment. Moreover, annual leave was for service provided and the plaintiff had not been working for the defendant during the period for which annual leave was being claimed. The defendant also submitted the Court had a residual discretion to decline the application if the justice of the case required.
The plaintiff had been dismissed prior to the coming into force of the Employment Relations Amendment Act (No 2) 2004 (“the amendment”) which inserted s183(2) of the Employment Relations Act 2000 (“ERA”). However, the Court’s substantive hearing and decision was delivered after the amendment was in force.
Held
(1) The plaintiff in his challenge had sought a complete review of the remedies and in particular that of reinstatement, which had been declined by the Authority. The plaintiff’s amended statement of claim, although it sought to defend the Authority’s determination in part, stated it was “now a full challenge de novo”. (para 24)
(2) The substantive judgment was governed by s183 ERA. It was arguable that the insertion of s183(2) ERA was purely procedural to clarify the effect of a decision of the Court and would apply because the substantive judgment was issued after the amendment came into force. The insertion of s183(2) was therefore not retrospective as it did not affect the rights of the parties, but only clarified the effect of decisions of the Court. (paras 25-27)
(3) As amended s183(2) ERA made it clear that once the Court had made a decision on “the matter”, which must refer to those parts of the Authority’s determination which were the subject of the challenge if a full de novo hearing was not sought, the determination of the Authority was set aside and the Court’s determination stood in its place. In the present case remedies were one of the subjects of challenge. The section as amended therefore effectively disposed of the plaintiff’s contention that the Court’s judgment was to be read as additional to the Authority’s determination. (para 28)
(4) If the Court was wrong on the matter of the transitional provisions then the un-amended s183 ERA clearly carried the implicit position that once the Court had made a decision, the determination of the Authority in the matter was to be set aside and the decision of the Court was to stand in its place. (para 29)
(5) The substantive decision was not intended to provide a reimbursement order in addition to that awarded by the Authority. The Court’s order was intended to be in substitution for the Authority’s award and therefore the defendant was entitled to claim credit for the payment already made. The substantive judgment dealt comprehensively with the compensation award on the findings of fact that had been made, some of which were at great variance to those found by the Authority. The Authority’s compensation award was set aside and its only effect was that, because it was paid, the defendant was entitled to claim credit for that amount against the new award. (paras 30-32)
(6) The matter of accrued leave was res judicata and the plaintiff was estopped from now raising that issue which he had not raised in the original hearing. To allow the present application to go forward would be to re-litigate a matter that had already been before the Court and should have been determined there, had it been raised. For the reasons advanced by the defendant that cause of action must also be struck out. (para 41)
(7) The defendant’s application to strike out the plaintiff’s proceeding succeeded and the plaintiff’s claims were struck out. (para 42)
Result: Application granted (strike out) ; Costs reserved
Statutes considered:
Employment Court Regulations 2000 r6
High Court Rules R12
High Court Rules R186
ERA s179
ERA s183
Cases referred to in judgment:
Attorney-General v Prince and Gardner [1998] 1 NZLR 262
Brickell v Attorney-General (2002) 16 PRNZ 557 (HC)
Gilbert v Attorney-General in respect of the Chief Executive of the Department of
Corrections (No 1) [2006] 1 ERNZ 1
Goulding v Chief Executive, Ministry of Fisheries [2004] 3 NZLR 173 (CA)
Gurleyen v Riyad unreported, Couch J, 10 November 2005, WC 14A/05
Hoystead v Commissioner of Taxation [1926] AC 155
McMenamin v Attorney-General [1985] 2 NZLR 274 (CA)
New Brunswick Rail Co v British and French Trust Corporation Ltd [1939] AC 1
NZ (with exceptions) Shipwrights etc Union v NZ Amalgamated Engineering etc
IUOW and Steiner and Spartan Engineering [1989] 3 NZILR 284
Ruddlesden v Unisys New Zealand Ltd unreported, Shaw J, 18 February 2005, WC
5/05
Woud v Department of Corrections [2005] 1 ERNZ 314
Pages: 3
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Andrew Yong t/a Yong & Co Chartered Accountants v Chin
AC 37/07
Heard: 18 Apr 2007, 20 Apr 2007, 7 May 2007, Auckland
Judgment Date: 20 Jun 2007
Court/Authority/Tribunal: Perkins, J
Appearances: E Orlov; M Nutsford
DE NOVO CHALLENGE TO DETERMINATION OF EMPLOYMENT RELATIONS AUTHORITY – Unjustified dismissal – Constructive dismissal – Plaintiff loaned money to defendant’s husband – Loan not repaid – Defendant interviewed about debt – Pressure put on defendant to pay debt – Plaintiff submitted had a right to investigate and discuss alleged or suspected breaches of employment agreement – Submitted, if there was repudiatory conduct, defendant had affirmed employment agreement – HELD – Employer must be initially justified in setting up inquiry into alleged breaches – Suspicion not strong – Delay – Necessary to look at whether plaintiff’s conduct as a whole, judged reasonably and sensibly, was such that defendant should not have been expected to put up with it – Breach of implied term of trust and confidence – Breach of good faith – Resignation foreseeable – Defendant did not affirm contract – Constructive dismissal finding meant no need for further consideration of threshold test prescribed by s103A Employment Relations Act 2000 – Nevertheless, plaintiff’s behaviour was clearly not what a fair and reasonable employer would or could have done in all the circumstances – Challenge dismissed – Compensation for humiliation etc increased – Accountant
This was an unsuccessful de NOVO challenge to a determination of the Employment Relations Authority. The Court held that the defendant was constructively dismissed and awarded increased remedies.
The plaintiff employed the defendant in his accountancy practice in 2002. The defendant resigned in October 2003 but recommenced employment in May 2004. She did not have a written contract of employment. During her first period of employment the plaintiff lent the defendant’s husband (“the husband”) $50,000 (“the first loan”).
The plaintiff and the husband agreed not to tell the defendant about the loan.
Following a successful transaction for a client of the plaintiff the defendant and her husband visited the client’s home for dinner. That invitation was reciprocated and the client attended dinner at the defendant’s home. Following that dinner the client lent the husband $60,000 (“the second loan”). The second loan occurred when the defendant was not employed by the plaintiff. The husband was adjudicated bankrupt and neither loan was repaid. However, due to a matrimonial property agreement the defendant’s assets were largely protected. The plaintiff learned of the second loan when the client alleged breach of fiduciary duty against the plaintiff and the defendant.
Following the husband’s bankruptcy, the plaintiff began suggesting the defendant honour the first loan. The plaintiff alleged the defendant was aware of both loans but initially accepted the defendant was not involved. The plaintiff next received the help of a business consultant aligned with scientology. The consultant interviewed the defendant about her integrity and loyalty and traversed personal matters including how she or her husband was to repay the first loan. The defendant complained about the content of the interview and received a reply requesting a solution as to loan repayment. Further correspondence between the parties began to indicate that the plaintiff desired the defendant’s resignation if a solution was not forthcoming. In that correspondence the issue of the lack of written employment agreement was discussed and the defendant was requested to finalise a written agreement sent to her. The defendant requested time to take legal advice before signing. The plaintiff and the consultant then visited the husband at the defendant’s home unannounced while the defendant was on leave. The defendant directed them to leave and when they refused the police were called. In response, the defendant resigned and brought proceedings for constructive dismissal.
The Employment Relations Authority found the defendant had been constructively dismissed and awarded remedies including $5,000 compensation for humiliation etc.
The plaintiff submitted he had a right to investigate and discuss alleged or suspected breaches of the employment agreement citing Auckland Electric Power Board v Auckland Provincial etc Officers IUOW (cited below). The plaintiff alleged the matrimonial property agreement and the client dinners were part of a conspiracy between the defendant and her husband. The plaintiff submitted that those were among the matters which provided the basis for the plaintiff and the consultant to question the defendant. The plaintiff submitted that even if the contract had been repudiated, the defendant had affirmed the contract.
The defendant submitted the she had been unjustifiably constructively dismissed.
The present case was the first constructive dismissal personal grievance to be decided by the Court following the enactment of s103A and s4(1A) Employment Relations Act 2000 (“ERA”).
Held
(1) There were three situations where a constructive dismissal might occur: (i) where the employee was given a choice of resignation or dismissal; (ii) where the employer had followed a course of conduct with the deliberate and dominant purpose of coercing an employee to resign; and, (iii) where a breach of duty by the employer led a worker to resign. It was the last of those three situations that applied in the present case. (parkas 34, 35)
(2) An employer must be initially justified in setting up an inquiry. In Auckland Electric Power Board v Auckland Provincial etc Officers IUOW (cited below) suspicions were strong and the employer embarking on an inquiry was reasonable, whereas in the present case that was not so. In addition the inquiry was conducted without delay whereas in the present case that was not the position. (parkas 37, 45)
(3) In considering whether there was a breach of the implied mutual obligations of trust and confidence or the overall obligation of good faith, it was necessary to look at whether the employer’s conduct as a whole, judged reasonably and sensibly, was such
that the defendant should not have been expected to have put up with it. (parka 40)
(4) There was no conspiracy between the defendant and her husband. There was no impropriety in the defendant accepting the invitations to dinner or reciprocating. There was no principle of employment law forbidding such contact between an employee and employer’s client. Those matters did not provide the basis for the investigation of the defendant’s integrity and loyalty. It was debatable whether the plaintiff or the consultant knew about the matrimonial property agreement or the dinner invitations at the time of the questioning of the defendant. (parka 41)
(5) The plaintiff had, over a year earlier, accepted that the defendant was not a party to the loan transaction. He did not need any further assurance from the defendant on that score in any event because he had agreed with her husband at the time that he made the first loan that she should not be informed. (parka 42)
(6) The submission that the defendant affirmed the contract was only relevant in the context of constructive dismissal arising from repudiatory conduct followed by the election to cancel the contract. The Court’s inquiry was to be wider than that. Nevertheless, the defendant did not affirm the contract of employment or, more correctly, waive previous conduct towards her by her employer. Even if she had signed the written agreement, so that there was retrospective technical compliance with the law, that would not amount to waiver or affirmation. Secondly, the act of going to the defendant’s home must have been likely to have created an altercation as it did. A foreseeable outcome of that action, against the previous background and correspondence, must have been the defendant’s resignation from employment. (parka 43)
(7) The actions of the consultant and the plaintiff justified the defendant’s resignation and thereby amounted to a constructive dismissal. There was no reasonable justification for the interview without notice which then proceeded to delve into personal matters. The consultant undermined the defendant’s position. He attacked her integrity. In later correspondence he made statements tantamount to threatening her continued employment. The plaintiff stood by and encouraged those actions. (parka 45)
(8) Whether or not the actions of the plaintiff in the present proceedings were couched in terms of conduct repudiatory of the contract, breach of implied terms to maintain trust and confidence, or breach of the obligation of good faith the effect was the same. The actions were causative of the defendant’s resignation. Her resignation must have been a reasonably foreseeable outcome of their behaviour, which was unjustified. (parka 47)
(9) In a case involving facts such as the present it was clear that the finding that there had been a constructive dismissal resulting from the behaviour and breach of duty or obligation of the employer meant that there did not really need to be a further consideration of the threshold prescribed by s103A ERA. Nevertheless, the behaviour of the plaintiff was clearly not what a fair and reasonable employer would, or for that matter could, have done in all the circumstances. (parka 48)
(10) The Authority’s remedies awards were affirmed, except as to compensation for humiliation. The effect of the actions of the plaintiff was considerable. The defendant suffered headaches, difficulty in sleeping and other symptoms of stress. As the challenge sought a hearing de NOVO against the whole of the determination, it was open to the Court to increase the defendant’s awards. A more appropriate level of compensation for humiliation was $8,000. There was no evidence of contribution.
(parkas 2, 46, 49-52)
COMMENT:
(1) Constructive dismissal might not fall to be determined just in the context of common law repudiation of contract with an election to cancel. Rather the conduct of the parties and its cumulative impact on the employment relationship was to be considered. In New Zealand these issues might now be academic with the statutory overlay of the Employment Relations Act 2000 (“ERA”). Section 4(1)(a) ERA required the parties to an employment relationship to deal with each other in good faith. Section 4(1A)(a) stated that such duty “[was] wider in scope than the implied mutual obligations of trust and confidence”. (parkas 38, 39)
Result: Challenge dismissed ; Reimbursement of lost wages ($3,653.85) ; Compensation for humiliation etc ($8,000) ; Arrears of holiday pay ($2,192.31 plus interest) ; Costs reserved
Statutes considered:
ERA s4(1)(a)
ERA s4(1A)(a)
ERA s103A
Cases referred to in judgment:
Officers IUOW Inc [1994] 1 ERNZ 168
Auckland Shop Employees Union v Woolworths (NZ) Ltd [1985] 2 NZLR 372
Wellington, Taranaki and Marlborough Clerical etc IUOW v Greenwich (t/a
Greenwich and Associates Employment Agency and Complete Fitness Centre) [1983]
ACJ 965 ; (1983) ERNZ Sel Cas 95
Western Excavating (EEC) Ltd v Sharp [1978] QB 761
Woods v WM Car Services (Peterborough) Ltd [1981] ICR 666 (EAT)
Woods v WM Car Services (Peterborough) Ltd [1982] ICR 693 (CA)
Pages: 4
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