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Tuari & Anor v Sims Pacific Metals Ltd & Ors
23 Mar 2007, P Cheyne, CA 27/07, (14 pages)
UNJUSTIFIED DISMISSAL – Constructive dismissal - First applicant (“J”) wife of second applicant (“T”) - Both employed by respondent - Respondents concerned about T’s performance – T suffered stress-related breakdown – T given two options, disciplinary process or exit package – T agreed he and J would resign in exchange for money – T confirmed had spoken to J and she agreed to resign – T signed settlement agreement - Next morning applicants returned to work, where J deleted computer files and T broke memory stick – J disputed resignation, claiming T could not make decision on her behalf – Respondents stood J down but later said could return to work – J subsequently resigned – Whether constructively dismissed - Only possibility of coercion was dealings over J’s later resignation – Respondents could be criticised for initiating arrangements through T – However, J knew and implicitly consented to arrangements – No course of conduct with deliberate and dominant purpose of coercing resignation – No sufficiently serious breach of duty making resignation reasonably foreseeable - No constructive dismissal – BREACH OF CONTRACT - Counterclaim - Respondents claimed breach of contract and sought damages - Implied duty of trust and confidence extended to prohibit intentionally damaging company property – J breached implied obligations by deleting computer files and assisting T in breaking memory stick – No evidence of actual loss aside from memory stick – J ordered to pay damages for memory stick only - PENALTY – Respondents claimed applicants breached implied terms and/or aided and abetted each other in breaching employment agreements – No reason to distinguish between levels of culpability – Penalty imposed against applicants for breach of implied terms of trust and confidence – BARGAINING – T counterclaimed settlement agreement result of unfair bargaining under s68 Employment Relations Act 2000 ("ERA") – Authority found settlement agreement term of employment agreement and unfair bargaining claim considered - While T unwell, no evidence could not understand implications of settlement agreement – Evidence T went into meeting intending to resign – Could not succeed under s68(2)(a) ERA – Whether T induced to enter settlement agreement by oppressive means, undue influence or duress – Although pressured by options put to him at meeting, could not succeed in face of evidence intended to resign – Valid full and final agreement meant T could not succeed in personal grievance – Could not circumvent effect of settlement with penalty actions against respondents - J's length of service seven months, T's not specified - Office assistant and yard manager
Result: Application dismissed (Unjustified dismissal, bargaining) ; Application granted (Breach of contract, penalty) ; Damages ($50)(Payable to Respondents) ; Penalty ($1,000 each applicant)(Payable to Crown) ; Costs reserved
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