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Avery v New Wool Products Ltd
21 Dec 2007, P Montgomery, CA 158/07, (10 pages)
UNJUSTIFIED DISMISSAL - Constructive dismissal - Abandonment - Applicant alleged dismissed after raised safety concerns with respondent - Claimed raised number of concerns but no action taken - Factory shut down for maintenance - Applicant advised would return when it was safe - Provided no further details of what needed to be remedied before he would return - Later attempts to contact applicant unsuccessful - Applicant returned to factory and handed over property and asked for wages and holiday pay - Respondent took actions as request from casual employee to end employment relationship - Applicant also complained to OSH, which undertook inspection of factory - Inspector assured work being undertaken to remedy defaults and no prohibition notice issued - Applicant claimed had number of "near misses" at work but had not reported them as required by company rules - Aware health and safety work underway - Contention left because health and safety concerns being ignored hard to sustain - Concerns raised by applicant insufficient to allege breach of duty to support decision to leave - Given respondent kept applicant informed of progress on health and safety related work resignation not foreseeable - Respondent later sent letter setting out belief applicant abandoned employment, however returning property clearly signalled resignation - No dismissal - Factory worker
Result: Application dismissed ; No order for costs
Cathro v Monastra
12 Dec 2008, J Crichton, CA 191/08, (4 pages)
UNJUSTIFIED DISMISSAL - No appearance by respondent - Authority satisfied employer was respondent, not respondent's company - Upon arrival at work, applicant given free movie tickets and told to go to movies rather than work - Next day applicant left list of problems with kitchen as was concerned about health risks of dirty kitchen - That evening applicant received text message from respondent asking where applicant was - Applicant suggested respondent contact him but respondent failed to do so - Following day respondent told applicant no longer employed - Authority found lack of enquiry or opportunity to be heard was unfair - Dismissal unjustified - Remedies - Authority satisfied applicant became stressed and concerned about possible impact of dismissal on reputation - $1,500 compensation appropriate - Reimbursement of lost wages for week until applicant found new employment - ARREARS OF WAGES AND HOLIDAY PAY - Authority satisfied applicant owed wages and holiday pay - Chef
Result: Application granted (unjustified dismissal) ; Compensation for humiliation etc ($1,500) ; Reimbursement of lost wages ($662.50) ; Arrears of wages ($1,462.50) ; Arrears of holiday pay ($371) ; Disbursements in favour of applicant ($70)(Filing fee) ; Costs to lie where they fall
Chiu v New Deli & Cafe Ltd and Anor
18 Nov 2008, A Dumbleton, AA 394/08, (35 pages)
PRACTICE AND PROCEDURE - Respondents two separately incorporated companies with same directors - Written employment agreement stated both respondents were "The Employer" - Authority found applicant employed by both respondents at same time - UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Applicant advised respondent that pregnant - Applicant raised disadvantage grievance with respondents, stating disadvantaged and discriminated against by reason of pregnancy - Applicant dismissed two days later - Alleged ground for dismissal was failure to provide proof of eligibility to legally work in New Zealand - Respondent offered job back on condition applicant provided proof of immigration status - Applicant claimed dismissal unjustified due to discrimination by reason of pregnancy - Respondent denied claims, and argued applicant employed 3 weeks, not six months - Conflict in evidence as to term of employment - Parties called evidence from customers of café, past and present employees, telephone records, forensic examination of handwriting, bus tickets and bank deposit receipts - Authority found more than likely that applicant employed for over six months, and that respondents called false evidence - Authority rejected respondent's alleged justification for dismissal - Accepted applicant's evidence that already provided satisfactory proof of eligibility to work so did not provide it again when requested - Found respondent's real concern likely impending disclosure to IRD of respondent's failure to pay PAYE on wages when applicant applied for paid maternity leave - Applicant's immigration status pretext for dismissal - Real reason applicant's pregnancy or impending parental status and its further consequences - No justification for dismissing applicant on grounds of pregnancy - Dismissal unjustified - Due to close proximity in time and event, Authority found dismissal grievance subsumed disadvantage and discrimination grievances - Found in any case, no actual disadvantage or discrimination occurred prior to dismissal - Remedies - No contributory conduct - Authority considered when applicant would have stopped work due to pregnancy - Requirement to mitigate loss considered against respondent's failure to attend mediation in timely manner - Thirteen weeks lost wages awarded - Applicant suffered substantial emotional harm through dismissal and loss of chance to secure maternity leave - Harm aggravated by respondent's conduct in persisting with false evidence and insulting insinuations about applicant - $8,000 compensation appropriate - PARENTAL LEAVE - Authority found unjustified dismissal prevented applicant from applying for maternity leave - No reason why application would not have been accepted - Entitled to compensation for loss of opportunity - Authority considered compensation for loss of expected statutory benefit could be awarded under s123(1)(c) ERA - Civil remedy of compensatory damages for breach of contract also available under s162 ERA - Loss quantifiable as would have received 14 weeks pay - Loss directly and foreseeably arose from respondent's unlawful act of unjustified dismissal, and not remote consequence - Authority awarded sum to restore applicant to position if opportunity to apply for paid maternity leave not unlawfully taken away - ARREARS OF WAGES - Authority found applicant received holiday pay for three weeks rather than six months - Authority accepted applicant's calculations - Holiday pay owing - Two days pay also owing - COSTS - Applicant represented self - No costs or disbursements awarded - Waitress
Result: Application granted (unjustified dismissal) ; Arrears of wages ($239.20) ; Arrears of holiday pay ($1,384.27)(Interest 6%) ; Reimbursement of lost wages ($8,023,60)(Interest 6%) ; Compensation for humiliation etc ($8,000) ; Compensation for loss of benefit of paid parental leave ($4,619.47) ; Application dismissed (unjustified disadvantage) ; No order for costs
Coates v Aerocool Ltd
17 Jan 2008, D King, AA 11/08, (6 pages)
PRACTICE AND PROCEDURE - Whether personal grievance raised within 90 days - Disadvantage claim clearly not raised within 90 days and taken no further by Authority - UNJUSTIFIED DISMISSAL - Constructive dismissal - Respondent planned restructuring - Initially indicated intention to disestablished applicant's position but later advised restructuring of put on hold and applicant could continue in current position until proposal reactivated - Applicant considered lack of certainty regarding employment meant no option but to resign - Respondent followed fair and proper consultation process - Applicant's resignation not caused by breach of duty by respondent - No constructive dismissal - Financial officer
Result: Application dismissed ; Costs reserved
Cox v Kiwi Green Island Club Ltd
6 Dec 2007, J Crichton, CA 137/07, (15 pages)
UNJUSTIFIED DISADVANTAGE - Applicant alleged lost control of duties central to employment - Applicant considered duties reallocated after parties discussed possibility of redundancy - When restructuring cancelled applicant sought to have duties contained in job description returned to him, especially master planning - Respondent did not consider job description reflected agreed duties - Applicant's involvement with master planning changed when respondent arranged joint venture - Applicant involved in arrangement and knew or ought to have known consequences and made no objection - Not unreasonable to expect applicant as senior employee to raise concerns - Applicant not responsible for master planning in first place, therefore not subsequently stripped of responsibility - Applicant's allegation put into radically different position from that previously occupied not accepted - Applicant also complained about shortage of work - Claimed work whittled away to such extent had no alternative but to resign - Authority not satisfied claim made out - Project management, by its nature, subject to fluctuations in work load - Authority not satisfied situation anything other than effect of business process - No disadvantage - UNJUSTIFIED DISMISSAL - Constructive dismissal - Inappropriate pressure placed on applicant to sign amendment to employment agreement removing entitlement to redundancy compensation - Respondent accepted matter handled badly - Breach of statutory obligation to act in good faith and implied term of fair and reasonable treatment - Applicant left with no other action than to leave - Constructive dismissal - Remedies - Global compensation award also dealt with breaches of good faith and implied term - Project manager
Result: Application granted in part ; Reimbursement of lost wages ($21,342.99) ; Compensation for humiliation etc ($9,000) ; Disbursements ($70)(Filing fee) ; Costs reserved
Dempsey v Waikato Drycleaners (1983) Ltd
23 Dec 2008, V Campbell, AA 438/08, (8 pages)
JURISDICTION - Applicant dismissed after respondent informed by client that applicant had criminal record, was taking action against former employer and interviewed with another employer prior to starting with respondent - Client told respondent that did not want applicant at work site - Applicant claimed was summarily dismissed for being dishonest, untruthful and lying to respondent - Respondent argued applicant not employee because never commenced work - Alternatively argued dishonesty justified dismissal - Applicant completed employment form where asked to disclose criminal convictions and whether awaiting hearing "of any charges in a civil or criminal Court of law" - Applicant answered "No" to both questions - Also left gap in form which requested information about current and previous employment - Respondent argued employment offered subject to everything "checking out ok" - Applicant provided with employment agreement ("EA") already signed by respondent - Authority concluded EA made no mention that offer subject to everything checking out - EA signed but not returned to respondent - Authority satisfied applicant "a person intending to work" under s6 ERA - Authority's conclusion supported by evidence that agreed start date confirmed and applicant already sized for company shirt - Applicant an employee - UNJUSTIFIED DISMISSAL - Authority found upon signing EA applicant attesting aware employed on answers provided and if in respondent's opinion questions not answered truthfully or completely employment could be terminated without notice - Authority found had respondent enquired into where client obtained information about applicant then would have revealed applicant long time member of client's club and consequently regularly on client's premises - Applicant called to meeting on first day and told information received from client - Respondent put to applicant that dishonest when listing previous employment for prior year - Applicant acknowledged employment not disclosed and that at time application completed, applicant taking action for unpaid wages - Authority found had respondent taken time to check information provided by applicant then would have seen gap pertaining to employment - Found applicant did not provide false dates of employment - Found respondent could have questioned applicant about gap in information prior to offer of employment - Also found respondent wrongly concluded claim against previous employer same as applicant awaiting the hearing of charges in a criminal or civil Court - Authority satisfied applicant did not knowingly withhold relevant information as mistakenly believed disclosure not required under Criminal Records (Clean Slate) Act 2004 - Respondent's refusal to disclose name of client meant applicant unable to advise respondent that was member of client's club and visited site for social reasons - Calling applicant to disciplinary meeting without warning that dismissal imminent procedurally unfair - REMEDIES - Authority found applicant failed to provide full and complete employment details when obligated to - Prudent employee would have checked legal obligations before deciding not required to disclose previous criminal conviction - Contributory conduct 50 percent - $1000 compensation appropriate - Driver/Customer Service
Result: Application granted ; Reimbursement of lost wages ($2160) ; Compensation for humiliation etc ($2000 reduced to $1000) ; Costs reserved
Fenton v Centre Island Seafoods Ltd
17 Dec 2007, P R Stapp, AA 398/07, (10 pages)
UNJUSTIFIED DISMISSAL - Applicant alleged unjustifiably dismissed when not re-employed by respondent - Respondent submitted applicant engaged on seasonal arrangement and left, which led it to conclude he no longer wanted to work for it - Applicant initially engaged without agreement on permanent basis - Signed seasonal agreement superseded earlier arrangement - Seasonal employee from that time - Lawful fixed term agreement - Towards end of season, applicant advised no work available during off season - Applicant left and did not return - Respondent claimed attempted to contact applicant without success - Open to respondent to conclude applicant had left for other work - No dismissal - No formal arrangement that receptionist would contact workers to re-engage them for new season - Therefore applicant had no claim respondent failed to re-employ him - Respondent did not rely on abandonment clause so no obligation to contact applicant - No sufficient contractual terms to require the employer to re-employ applicant and to contact him for that purpose - COSTS - Length of investigation meeting not specified - Reasonable contribution to costs awarded to respondent
Result: Application dismissed ; Costs in favour of respondent ($1,500)
Gomes v Ministry of Social Development
14 Dec 2007, A Dumbleton, WA 168/07, (36 pages)
UNJUSTIFIED DISMISSAL - Applicant dismissed as respondent considered his relationship with manager irrevocably broken down and lacked trust and confidence - Applicant had lodged disadvantage grievances with Authority but not resolved at time of dismissal - Dismissal substantively grounded on adverse consequences in workplace of applicant continuing to seek resolution of disadvantage grievances - What respondent regarded as conduct contributing to loss of trust and confidence was conduct carried on by applicant with reasonable and proper cause - Dismissal took away opportunity to meaningfully resolve grievances - In dismissing applicant, respondent also held him to account partly for making bullying complaint and challenging report from investigation and investigation process - Applicant had reasonable grounds for some of rejection - Fair and reasonable employer would not have relied on matter as part of grounds for dismissal - Dismissal unjustified - UNJUSTIFIED DISADVANTAGE - Original disadvantage grievances also dealt with by Authority - Applicant alleged disadvantaged by performance review - Independent review reached same conclusion as original assessment - Review conducted fairly - No disadvantage - Second grievance related to removal from role as project leader - Applicant involved in review of suitability for role - Removed for genuine operational reasons and not disadvantaged - DISCRIMINATION - Alleged discriminated against by reason of involvement in union activities, namely submitting another personal grievance within 12 months of latest action complained about - Disadvantage grievances substantial part of reason for act of discrimination, which resulted in dismissal - Presumption respondent discriminated against applicant not rebutted - Discrimination grievance upheld - Remedies - Reinstatement to former position impracticable as relationship with manager completely broken down - Reinstatement to position no less advantageous ordered - Unit manager
Result: Application granted (Discrimination and dismissal) ; Reinstatement ordered ; Compensation for humiliation etc ($10,000)(Dismissal) ; ($4,000)(Discrimination) ; Application dismissed(Disadvantage) ; Costs reserved
Gurnell v School Centre Irene Ltd
22 Jan 2008, A Dumbleton, AA 18/08, (15 pages)
UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Constructive dismissal - No breach of good faith when employment entered into - Expectation of pay rise not based on promise made by respondent - During employment applicant raised personal grievance alleging unjustified disadvantaged - At same time applicant raised grievance, respondent sought meeting to discuss concerns relating to misuse of confidential information and misappropriation of money - Police involved and applicant suspended - Following investigation, issued written warning for failure to follow policy in relation to receipt of money - Few days later applicant resigned - Not suspended because raised grievance - Respondent actions did not fit within definition of lockout - Any possibility of disadvantage arising from warning had not crystallised before employment ended - Respondent had proper cause for disciplinary investigation and warning reasonable - Resignation in response to warning not foreseeable - Also alleged respondent breached duty to ensure safety by causing distress by raising allegations at a time when she was already on sick leave because of stress - Respondent did not take any appreciable risk with regard to applicant's health - No breach of s236 Employment Relations Act 2000 as disciplinary meetings not convened pursuant to a statutory right "to do anything or take any action" - Respondent met required health and safety standards - Resignation precluded resolution of grievances - No useful purpose served by going back and attempt to redress the various problems raised - Matters resolved in favour of respondent - Assistant manager
Result: Application dismissed ; Costs reserved
It Maniacs Ltd v Ford
12 Nov 2007, R A Monaghan, AA 351/07, (45 pages)
BREACH OF CONTRACT - Applicant claimed breach of contract and sought damages - Applicant claimed respondent attempted to set up competing business, enticed applicant's employee to work for him and breached confidential information and IT policies - Applicant also invited Authority to conclude respondent in contempt of Authority by failing to produce evidence - Respondent intended to set up business to sell specialist computer software - Applicant advised that plan acceptable if did not promote business to applicant's clients or work on business during applicant's time - Applicant offered respondent franchise opportunity which respondent rejected - Proposal included applicant's financial information and business plan - Information provided on confidential basis - Forensic examination revealed respondent copied several of applicant's client's CVs to laptop - Applicant claimed was evidence respondent using CVs for own business - Respondent argued CVs necessary to test software - Applicant's primary concern respondent setting up business in competition with applicant and breached obligations as employee - Authority identified supplementary breaches prior to hearing primary breach - Claimed breached Employment Agreement ("EA") by purchasing domain name, preparation of stationary, transferring large quantity of applicant's information to home server, registering recruitment website, testing applicant's software, and registration of new business - Authority found duty of fidelity did not prevent employees preparing for own business provided done without breaching duty of trust and confidence to current employer - Authority found no evidence respondent offered employment to co-worker - Authority not persuaded respondent diverted applicant's candidates to own business - Found allegations regarding misuse of confidential information and intellectual property was conduct capable of undermining trust and confidence, however, in these circumstances breaches not sufficient in themselves to amount to undermining conduct - Authority found respondent's credibility dented by deleting material from personal laptop which prevented applicant and Authority from identifying extent of activities - Authority considered applicant's evidence not as compelling as applicant believed - However, respondent's subsequent conduct seriously suggested guilty conscience - Authority concluded respondent's failure to inform applicant that working on new business after declining franchise offer favours finding respondent preparing to establish business in breach of duty of fidelity - Damages - Authority satisfied not enough evidence to warrant order that respondent repay salary - Found no loss suffered by applicant as result of breach of EA by respondent - Respondent ordered to reimburse applicant for costs incurred in forensic examinations ($14166) - Found respondent aggravated matters by deleting material after became aware of applicant's concerns - Authority found not enough evidence to support other damages claims - COUNTERCLAIM - UNJUSTIFIED DISADVANTAGE - Respondent claimed decision to suspend unfair as not given opportunity to be heard before suspension - Found no disadvantage as applicant's interests in protecting its proprietary information justified suspension without respondent being heard - UNJUSTIFIED DISMISSAL - Applicant argued decision to dismiss based on evidence in forensics report - Authority did not accept applicant's reasons for failing to reconvene disciplinary meeting - Respondent's breach of fidelity reflected extent to which could commence a competing business, however, when made decision to dismiss applicant read more into material available and therefore resulting conclusions flawed - Authority found use of respondent's "VPN connection" from home server a breached applicant's IT policy but risk to security not expressly relied on as reason for dismissal - Authority concluded reasons for dismissal not properly put to respondent - Dismissal unjustified - Remedies - Authority concluded respondent's efforts in response to applicant's investigation made respondent author of own misfortunes - No remedies awarded - ARREARS OF WAGES - Authority did not accept wages could be withheld on account of damages when neither quantum or liability established - Authority ordered applicant to pay $9328 being final pay and holiday pay unlawfully withheld from respondent - PENALTY - Authority found respondent's approach to applicant's information irresponsible but not breach of good faith - Authority concluded view of respondent's conduct reflected in remedy being declined for personal grievance - Penalty declined - National sales manager/senior recruitment consultant
Result: Application granted (Breach of contract) ; Application dismissed (Penalty) ; Damages ($14,166.54) ; Counterclaim granted (Dismissal) ; Counterclaim dismissed (Disadvantage) ; Counterclaim granted (Arrears of wages and holiday pay) ($9,382.57) ; Costs reserved
James v Cooney Financial Services Ltd
25 Jan 2008, R A Monaghan, AA 23/08, (12 pages)
UNJUSTIFIED DISMISSAL - Respondent denied employment relationship with applicant - Parties previously operated own businesses from same premises with some client sharing under contract - Respondent considered joining franchise which did not allow engagement of contractors - Applicant considered employment agreement formed when respondent asked if she wanted to be part of new proposal and she accepted - Respondent merely seeking expression of interest and saw actions as invitation to treat - At time had not finalised commitment to franchise, and new arrangement would be only reason for change - Number of subsequent events reinforced idea of employment to applicant, including participation in training sessions and business cards, but did not mean agreement reached - Nothing beyond vague conversation about other fundamental terms of employment, including remuneration - No offer of employment and therefore no dismissal - Insurance advisor
Result: Application dismissed ; Costs reserved
Keit v Picone Group Australasia Pty Ltd
19 Jan 2009, L Robinson, AA 13/09, (5 pages)
UNJUSTIFIED DISMISSAL - Applicant supervised by manager from Australia - Respondent telephoned applicant to discuss database updates and communication - Applicant conceded on two occasions failed to despatch respondent's database properly but agreed to improve - Applicant received "second official warning" for poor performance - Applicant emailed respondent and argued had issues with respondent's communication and expense reimbursement - Manager advised applicant communicate with him directly - Also stated applicant's performance unacceptable, however, wanted to put past behind them - Three days later applicant emailed manager explained was sick and would not attend work - Next day applicant summarily dismissed by email for failure to improve performance - Applicant claimed no formal warning - Authority found respondent discussed applicant's performance and first warning given during telephone conversation - Authority found not fair to dismiss applicant in circumstances - Found applicant not given "every opportunity to improve" or that respondent could conclude applicant failed to improve - Authority not persuaded any serious failings by applicant between second warning and dismissal - Also found no opportunity to respond before dismissal - Dismissal unjustified - Remedies - No contributory conduct - Applicant entitled to reimbursement of lost wages - $5000 compensation appropriate - Sales executive
Result: Applicant granted ; Reimbursement of lost wages ($9,940.00) ; Compensation for humiliation etc ($5,000) ; Costs reserved
Manson v X Ltd
14 Dec 2007, H Doyle, CA 151/07, (12 pages)
PRACTICE AND PROCEDURE - Respondent sought non-publication order in relation to identity - Previous employees threatened his family and business - Real risk publicity would impact on director's family - Order prohibiting publication of respondent's identity - UNJUSTIFIED DISADVANTAGE - Applicant claimed hours unilaterally reduced - Respondent submitted change only temporary - Applicant previously decided to resign but later withdrew resignation - Respondent claimed agreed to withdrawal on condition of full attendance - Although likely issue raised, Authority thought less likely clearly put forward as condition - Applicant subsequently admitted to hospital - When returned to work, director considered her too unwell to work - Rosters for following two weeks already prepared and applicant told full hours unavailable - Authority not satisfied respondent intended or told applicant hours permanently reduced - Fair and reasonable employer would have given her some certainty about rostered hours and asked for doctor's certificate fit to work if doubted ability to return - Applicant contractually entitled to 40 hours a week - Respondent deliberately decided not to change roster - Applicant unjustifiably disadvantaged when advised hours would be reduced for next two weeks - Remedies - Lost wages limited to one week as after that did not present to work - Short nature or employment and fact applicant already unhappy in employment taken into consideration - UNJUSTIFIED DISMISSAL - Constructive dismissal - Applicant left premises and did not return when advised work available - Constructive dismissal required communication that repudiatory conduct accepted and breach is reason for resignation - Authority unclear as to when applicant resigned and on what basis - Appeared hours issue not only reason for failure to return, but other reasons not communicated to respondent - Applicant's failure to present for work not sufficient in the circumstances - Hours issue raised as disadvantage claim - No subsequent actions adequate to validly cancel employment agreement - No constructive dismissal - Shop assistant
Result: Application granted (Disadvantage) ; Reimbursement of lost wages ($410)(1 week) ; Compensation for humiliation etc ($3,000) ; Application dismissed (Dismissal ) ; Orders accordingly ; Costs reserved
McLachlan v Hayward Coachlines Ltd
22 Dec 2008, R Arthur, AA 433/08, (9 pages)
UNJUSTIFIED DISADVANTAGE - Respondent employed applicant as bus driver - Applicant driving bus when involved in accident where driver of other vehicle killed - Applicant claimed treated unfairly following accident and dismissed - Applicant also sought pay owing - No health and safety plans and procedures in place to manage physical and emotional needs of drivers involved in accidents - Authority found only minimal steps taken to care for applicant following accident - Respondent checked to ensure applicant not driving beyond permitted hours and offered applicant food - Applicant not checked by ambulance staff - Authority found respondent should have arranged check-up - Found respondent gave no consideration to shock suffered by applicant after accident - Respondent reasonably expected to identify risk of traffic accidents as part of hazard identification process under Health and Safety in Employment Act 1992 - Disadvantage established - UNJUSTIFIED DISMISSAL - Redundancy - Respondent argued no bus available for applicant following accident - Respondent had told applicant that was rearranging coaches and drivers - Authority accepted evidence of applicant's friend who alleged told by respondent that applicant no longer an employee - Respondent argued spoke to applicant about lack of work but did not dismiss applicant - Authority satisfied applicant made redundant - Authority accepted genuine reasons for redundancy - Applicant's skills surplus to needs of respondent due to accident and damage to bus - However, respondent failed to consult with applicant about redundancy and alternatives - Dismissal procedurally unjustified - Remedies - Accident legislation barred any compensation as result of accident - $5000 compensation appropriate for loss of dignity and injury to feelings - PENALTY - $500 penalty awarded for failure to pay holiday pay and supply wage and time records - COSTS - Respondent to pay applicant $2070 as contribution to costs - Bus driver
Result: Application granted (Disadvantage)(Dismissal) ; Arrears of holiday pay ($1034.35) ; Compensation for humiliation etc ($5000) ; Penalty ($500)(Payable to applicant) ; Costs in favour of applicant ($2070)
McMillan v Joy Bong Ltd & Anor
11 Dec 2007, R A Monaghan, AA 390/07, (13 pages)
UNJUSTIFIED DISMISSAL - Constructive dismissal - Identity of employer - During employment with first respondent, applicant discussed setting up second respondent with directors of first respondent - Meeting notes indicated would be employed by new company - No written employment agreement - Given second respondent set up to provide "clean slate" surprising if applicant genuinely wished to remain associated with first respondent - First respondent ceased to operate or pay wages - Employed by second respondent - Problems arose in relationship when applicant promoted - Letter drafted by director purporting to demote applicant on basis of performance review conducted in his absence came to applicant's attention, although not sent - Director subsequently filed statement of problem in Authority - Applicant told to accept reduced salary and demotion and employment would end if matter went to mediation - Applicant left premises and employment ended - Director's conduct and threats during meetings sufficient to amount to breach of obligations to accord fair and reasonable treatment to applicant - Attempt to bully applicant into reducing pay would also support breach of duty - Although Authority accepted applicant did not have skills to do promoted job, director's approach did not meet standard expected of fair and reasonable employer - Constructive dismissal - Remedies - Arrears due and owing - PENALTY - Applicant sought penalty for failure to provide employment agreement - Ex-director responsible for failure - In circumstances, nothing to be gained by imposing penalty on respondent - General manager
Result: Application granted ; Reimbursement of lost wages ($7,288.48) ; Compensation for humiliation etc ($5,000) ; Arrears of wages and holiday pay ($4,274.68) ; Costs reserved
Menelda v Publicis Mojo Ltd
19 Dec 2007, R Arthur, AA 403/07, (19 pages)
UNJUSTIFIED DISADVANTAGE - Applicant alleged respondent breached duty to keep her safe from harm by failing to properly deal with bullying by client which led to nervous breakdown - Respondent accepted applicant raised issues about client but claimed it dealt with them and breakdown not foreseeable - Applicant employed specifically to deal with key client - Two years into role indicated felt stressed by client and wanted to resign - Parties agreed applicant would take leave at health resort with respondent contributing to expenses - No further complaints from applicant, but six months later applicant advised would no longer work for client - Agreed to continue while respondent looked at alternative roles - Other staff appointed to work on client account with applicant - Applicant had "meltdown" after client meeting and visited doctor - Diagnosed with stress and anxiety due to work - Evidence did not support conclusion client's behaviour bullying - However, clear applicant felt under considerable strain - Respondent's response to applicant's attempted resignations showed it provided reasonable level of support and responsiveness - No breach of duty - Obiter comment harm not foreseeable - Doctor's diagnosis resulted from applicant's self reporting - Not sufficient for Authority to determine respondent's actions caused ill health - No unjustified disadvantage - UNJUSTIFIED DISMISSAL - Medical grounds - Applicant dismissed after five month absence due to illness - Respondent submitted employment terminated when applicant's doctor advised she was permanently unable to return to work - Steps to terminate employment relationship reasonable in light of medical evidence available to it - Dismissal justified - Advertising account director
Result: Application dismissed ; Costs reserved
Nelson v Fletcher Steel Ltd
10 Dec 2007, J Wilson, AA 387/07, (33 pages)
UNJUSTIFIED DISADVANTAGE - Authority found respondent did not misled applicant or act in bad faith when hiring him - Applicant also alleged breach of duty of care as overworked and had unreasonable demands placed on him resulting in stress related illness - Raised matters with respondent as personal grievance and claimed it handled things unfairly causing further disadvantage - Although applicant under stress during employment, on balance level of stress not extraordinary - Respondent appropriately addressed concerns brought to its attention - No breach of duty to provide safe workplace - No evidence stress caused heart disease - No breach of good faith in way first grievance investigated - UNJUSTIFIED DISMISSAL - Applicant subsequently dismissed on grounds of medical incapacity - Parties had agreed to gradual return to work after applicant underwent surgery - Applicant advised unable to work at full capacity and situation could continue for further six months - Respondent considered employment agreement frustrated - No evidence ongoing personal grievance influenced decision to dismiss - However, decision made quickly and without giving applicant proper opportunity to comment - Dismissal unjustified - Remedies - Medical condition meant applicant would not have been receiving full salary - Also dismissal probable if respondent followed correct procedures - Lost wages limited accordingly
Result: Application granted (Dismissal) ; Reimbursement of lost wages (Half of one month's wages) ; Compensation for humiliation etc ($7,500) ; Costs reserved
Rose v Rodney Economic Development Trust
14 Jan 2008, R A Monaghan, AA 4/08, (14 pages)
UNJUSTIFIED DISMISSAL - Constructive dismissal - Claim based on allegations of uncertainty and inconsistency over rules and procedures relating to duties - Alleged discussions about those, and behaviour of manager, amounted to harassment - Circumstances did not support allegation rules were changed - Nothing unfair or unjustified about discussions - Nothing to suggest manager harassed applicant - Respondent made genuine and reasonable attempts to address concerns and clarify areas of uncertainty - Performance review conducted fairly - Nothing inappropriate about disciplinary meeting held to investigate concern applicant advised client to contact "Employment Tribunal" - Applicant resigned claiming ill health due to harassment and negative work environment - First indication of health problems - Respondent asked her to reconsider and applicant agreed to return on conditions - Respondent not obliged to withdraw allegations, as sought by applicant, especially as investigation not complete - Applicant considered this unacceptable and confirmed resignation - No incidents complained of, separately or cumulatively, amounted to breach of duty by respondent - No constructive dismissal - Youth transitions broker
Result: Application dismissed ; Costs reserved
Stone v Villages of New Zealand (Pakuranga) Ltd
11 Dec 2007, V Campbell, AA 388/07, (24 pages)
ARREARS OF WAGES - Applicant sought commission payments - Initially, no written employment agreement - Applicant concerned at provision in subsequent formal agreement that provided for reduced commission if certain circumstances - Matters complicated as applicant had requested all payments be deferred during start of employment for purposes of reducing income for child support calculation - Meant different understandings about payment did not become known for nearly a year - Reduced commission not a term of employment - Commission due and owing - Applicant also sought reimbursement of deductions - No express authority for deductions - Entitled to repayment of money taken for curtains as not instructed curtains no longer to be provided - No reimbursement for commission he was never entitled to claim - UNJUSTIFIED DISMISSAL - Constructive dismissal - On balance of probabilities respondent breached duty to treat applicant fairly and reasonably as result of unlawful deductions, underpayments and failure to ensure all sales lead referred to him - Breach of good faith - Reasonably foreseeable applicant would resign due to breach - However, sales with unpaid commissions and deductions occurred after applicant sought new job - Applicant accepted new employment but remained at respondent and took sick leave - Resigned days before contractually obliged to start new job - Applicant's conduct regarding moving on from respondent misleading - Had also set up fake sales calls in breach of good faith - Respondent's breaches not causative of resignation - Applicant resigned as due to commence new employment - No constructive dismissal - Sales person
Result: Application granted (Arrears) ; Arrears of wages ($10,320)(Commission) ; ($2,101.60)(Reimbursement of deductions) ; Application dismissed (Dismissal) ; Costs reserved
Taylor v Idea Services Ltd
22 Dec 2008, R Arthur, AA 431/08, (12 pages)
UNJUSTIFIED DISMISSAL - Constructive dismissal - Applicant claimed forced to resign as respondent failed to take proper safety measures to protect her from assaults by client - Also claimed unfairly accused of incorrectly administering medication - Applicant claimed distress caused by incidents resulted in miscarriage - Applicant employed to care for respondent's clients who were intellectually disabled - Applicant assaulted by client and required medical attention - Respondent responded with full range of post-assault care and staff de-briefing - Applicant indicated willingness to continue to work with client - Applicant assaulted again by client - Respondent concerned client would continue to assault applicant so applicant redeployed to alternative work site - Authority satisfied events did not disclose breach by respondent to take reasonably practicable, proportionate, measures to ensure applicant's safety at work, and that respondent took reasonable care to avoid unnecessary risk - Authority found evidence did not support assertion miscarriage caused by client assaults - Applicant felt uncomfortable at alternative work site and asked to be transferred - Found applicant's transfer to alternative site at short notice not breach of respondent's safe worksite duties - Incident occurred where appeared client mistakenly given double dose of medication - Applicant believed being blamed for error - Before investigation concluded applicant's representative informed respondent that applicant not well enough to work - Applicant accepted respondent entitled to investigate incident - Authority found respondent's investigation into incident did not amount to breaches of duty to treat applicant fairly and ensure her safety at work - Authority found respondent's administrative oversight in not providing incident report to ACC did not amount to breach of duty by respondent - Applicant resigned via representative - Respondent decided would not accept resignation until met with applicant's representative - Respondent declined to pay applicant's final pay - Respondent argued had no written authority from representative to represent applicant and did not consider had received genuine resignation - Authority found respondent had previously accepted representative's authority to act for applicant and that respondent knew applicant had resigned - Found respondent's response to resignation and request for final pay not consistent with good faith obligations - Respondent's stance cynical and ill-advised - However, Authority found applicant not forced to resign - No constructive dismissal - UNJUSTIFIED DISADVANTAGE - Authority found respondent's actions regarding applicant's final pay and status of representative where breaches of good faith - Breaches amounted to unjustified disadvantage - Remedies - $2,000 compensation appropriate - Community Support Worker
Result: Application dismissed (Dismissal) ; Application granted (Disadvantage) ; Compensation for humiliation etc ($2000) ; Costs reserved
Yukich v Allied Work Force Far North Ltd
11 Jan 2008, A Dumbleton, AA 3/08, (10 pages)
UNJUSTIFIED DISMISSAL - Employment status - Respondent argued no dismissal as applicant casual employee of its labour hire/temp agency - Applicant worked continuously for seven months - Weekly days and hours varied, but often substantial - Documents produced by respondent stated applicant casual - Information included statement agreement for fixed term and length of term was period respondent's client required staff - Nothing 'fixed" about employment dependent solely on will of another - Employment under agreement intended to be on day to day basis - Circumstances of applicant's employment significant departure from that contemplated by agreement - By departing from original intention, respondent gave him reasonable expectation employment continuous - Different agreement formed by conduct of parties - Dismissal breached terms of employment different to those in agreement, personal grievance remedies more appropriate than penalty or damages - Dismissal unjustified - Factory worker
Result: Application granted ; Reimbursement of lost wages ($3,281)(3 months) ; Compensation for humiliation etc ($3,500) ; Costs reserved
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