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MacGougan v The West Coast District Health Board (WCDHB)
30 Aug 2006, P Cheyne, CA 133/06, (4 pages)
UNJUSTIFIED DISMISSAL - Constructive dismissal - Applicant alleged breach of confidence by respondent's representatives when it attempted to have him admitted to psychiatric clinic - Applicant had problems with anxiety, panic attacks and alcohol - Medical certificates stated unfit for work for six months - Respondent's employees could be funded for referral to clinic - Manager arranged for applicant to see psychiatrist employed by respondent for referral - Arrangements made with applicant's consent, at least through partner - After consultation, psychiatrist wrote to another doctor asking applicant be considered for referral, and to respondent's manager - Applicant claimed told assessment would be kept confidential but respondent's typists processed assessment, and referral doctor was respondent's employee - Authority found applicant knew of referral doctor's involvement and only told local typists would not be used - Applicant later resigned and alleged actions of psychiatrist breached assurances of confidentiality or privacy and were breaches of duty by respondent - Actions complained of not those of employer - Although employed by respondent, psychiatrist not acting as employer in dealings with applicant - Resignation not caused by breach of duty by employer - Applicant also alleged respondent breached obligation's by making report to Nursing Council under Health Practitioners' Competence Assurance Act 2003 ("HPCA") - Report not made in bad faith - No civil proceedings could be brought against respondent for making report because of operation of s45(6) HPCA - No other grievance could by taken in relation to events as not raised within time limit - Length of service one year seven months - Psychiatric nurse
Result: Application dismissed ; Costs reserved
Stephens v Rosebuds Solutions Ltd
26 Oct 2006, R Monaghan, AA 328/06, (4 pages)
UNJUSTIFIED DISMISSAL - Whether dismissed or resigned - Applicant returned company van to office for use of employee on evening shift - Subsequently received message from employee indicating would not work shift, and director ("C") informed of situation - Applicant retrieved van and took it home without advising C - C left text message employment would be terminated if van not returned next day - Applicant claimed told his employment terminated when rang to explain could not return van next day - Dispute over conversations - Respondent denied said employment "terminated" - Unlikely applicant told to drop off company property later in week - Matter turned on credibility of witnesses - C angry enough to threaten dismissal if van not returned - Applicant principally relied on assertion C told him employment terminated - Authority not persuaded C used those words - Rather, common ground C instructed applicant to return van next morning or would be dismissed, and applicant indicated not in position to do so - Likely applicant took exchange as amounting to dismissal, or concluded employment at an end next day when failed to return van - Should have taken note of later indication still employed and been open to attending meeting with C - Exchange of messages not consistent with allegation expressly dismissed - Rather, consistent with applicant's uncertainty over whether failure to return van meant employment terminated - Applicant concluded prematurely had been dismissed - Gave no indication thought C dismissed him - Applicant's attitude to C gave him reason to believe decision to leave applicant's - No dismissal - Length of service not specified - Contract cleaner
Result: Application dismissed ; Costs reserved
Thanakornmanaporn v Boonyaphat Company Ltd
8 Nov 2006, RA Monaghan, AA 340/06, (7 pages)
UNJUSTIFIED DISMISSAL - Whether dismissed or resigned - Respondent recruited applicant from Thailand on fixed term agreement and retained his passport, although would temporarily return it on request - Before fixed term expired applicant informed respondent offered another job - Also requested passport - Manager did not return it as thought wanted passport so could leave immediately - Applicant had not said intended leaving early - Insufficient grounds for manager's conclusion - Both parties came to link return of passport with termination of employment - Applicant felt no choice but to leave because wanted passport - Even if passport sought to pursue employment elsewhere, did not in itself mean would leave current employment early - Applicant did not resign or voluntarily leave employment - Although respondent not seeking to dismiss, actions amounted to initiative for termination of employment - Applicant dismissed - Since based on misunderstanding, dismissal unjustified - Remedies - Lost wages limited to period of fixed term - Authority unconvinced loss mitigated and lost wages adjusted to reflect that - Minimal compensation as already unhappy at work and intended to leave soon - PENALTY - Claim for breach of obligation to provide opportunity to obtain advice when entered employment relationship raised out of time - Breach of good faith not raised expressly before investigation meeting - Not appropriate to raise it in submissions and not treated as part of employment relationship problem - Applicant sought penalty for payment in Thai baht rather than New Zealand dollars - Parties had agreed part of applicant's salary would be remitted directly to his Thai account - No breach of employment agreement in respect of payment in baht and no penalty to be imposed - However, requirement for written consent to pay wages into bank account not met - Breach did not call for penalty, but respondent to amend its employment agreements - Employment agreement silent on deductions made for accommodation, food and utilities - Penalty warranted but mitigating factors as applicant orally agreed to deductions and respondent recognised mistakes and prepared to address them - ARREARS OF WAGES - Letter from respondent to Immigration Service before applicant employed stated hourly rate for position - However, letter merely account from employer to third party, not evidence of later agreement between parties - No grounds to order repayment of deductions as subject to oral agreement - Correct accounting of PAYE between respondent and IRD - If applicant wrongly taxed matter to address with IRD - Both parties' statements of evidence filed late - Start of investigation meeting delayed so applicant and advocate could read respondent's statement - Advocate advised Authority ready to proceed and not appropriate for him to allege in submissions not given enough time to prepare - Length of service one year ten months - Chef
Result: Application granted (Unjustified dismissal) ; Reimbursement of lost wages ($3,115.38) ; Compensation for humiliation etc ($1,000) ; Application granted in part (Penalty) ; Penalty ($1,000)(Payable to Crown) ; Application dismissed (Arrears of wages) ; Costs reserved
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