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Baskett v B & M Entertainment Ltd
13 Mar 2007, GJ Wood, WA 38/07, (10 pages)
UNJUSTIFIED DISMISSAL - Applicant employed as brothel manager - Business restructured - Applicant promoted to new group manager position - Other manager left without notice when not accepted to new position - Applicant felt overworked and resigned, but owners asked her to withdraw resignation - Authority found resignation withdrawn by agreement - Respondent tried to revert to old business structure and rehired other manager - Told applicant group manager position disestablished at meeting - Respondent mistakenly believed could rely on applicant's resignation - In effect applicant lost position as group manager and demoted - Constituted substantial unilateral variation to employment agreement, not redundancy - Applicant correct to conclude had effectively been dismissed at end of meeting - Respondent failed to consult applicant when decided to revert to previous structure - No justification because of lack of consultation - Dismissal unjustified - PENALTY - Also claimed respondent failed to provide safe workplace due to heavy workload, and worked in excess of contracted hours - Additional hours required for short time, and applicant given support when resigned - Applicant prepared to work long hours - Penalty not deserved - Brothel manager
Result: Application granted ; Reimbursement of lost wages ($12,318) ; Compensation for humiliation etc ($8,000) ; Costs reserved
Baynes v Mouttaki
20 Mar 2007, H Doyle, CA 25/07, (10 pages)
UNJUSTIFIED DISMISSAL - Constructive dismissal - Abandonment - Applicant raised number of issues with employment - On waiting list for surgery when accepted job - Unfortunate applicant cancelled surgery but Authority not satisfied denied leave - Entitlement to bereavement leave capable of clarification if raised with respondent - Authority not satisfied respondent acted inappropriately or had predetermined plan to replace applicant - Warned twice about performance - Altercation while applicant delivering mail - Applicant alleged assaulted by respondent - Complained to police but charge withdrawn as applicant did not want to proceed - Applicant in receipt of ACC since incident - Respondent denied assaulting or dismissing applicant, claimed she quit - Authority not satisfied to required degree of probability assault occurred - No breach of duty of sufficient seriousness to make it reasonably foreseeable applicant would not be prepared to continue work - No constructive dismissal - Alternatively, alleged actually dismissed by letter purporting to accept resignation - Letter sent after respondent aware of police complaint - Applicant had not returned to work and refused to take phone call - Fair and reasonable employer, given knowledge of police complaint, would not have concluded applicant voluntarily resigned - All parties aware meeting to be held to discuss issues - No resignation to accept - Respondent should have been cautious about drawing inference employment abandoned, particularly given police complaint - Obligation of good faith not sufficiently discharged - Finalising applicant's employment without clarifying her intentions constituted dismissal - No abandonment clause in employment agreement and, in context of police complaint, dismissal unjustified - Remedies - Applicant's failure to clarify position contributory conduct - Applicant indicated never intended to return so no award of lost wages - Postie
Result: Application granted ; Compensation for humiliation etc ($1,200) ; Costs reserved
Corcoran v Graeme Rogerson & Denise Howell t/a Dormello Stud
19 Oct 2007, J Scott, AA 328/07, (17 pages)
UNJUSTIFIED DISMISSAL - Whether dismissed or resigned - Applicant moved onto farm before employment started - Number of disagreements with co-owner ("DH") - Shortly after employment began applicant met with other owner ("GR") - Alleged dismissed for incompatibility - Respondent denied dismissed applicant - Claimed applicant aggressive, critical of operation and personally attacked DH - Alleged made it clear would not work for DH - Respondent understood applicant leaving because not happy with way things run - Both parties arrived at view relationship over - No precise words of dismissal or resignation and each party had different perspective of termination - Applicant later rang respondent to see if could resolve differences - Respondent unwilling to reconsider situation - Applicant's approach determinative - Respondent advised applicant considered himself dismissed and should have been aware misunderstanding occurred - Classic case where "cooling off period" required - Fair and reasonable employer would have invited applicant to further meeting to discuss situation - No genuine resignation - Unjustified dismissal - Remedies - Throughout association with respondent applicant arrogant, abrasive and dismissive towards DH - Proposition could have continued at respondent without changing conduct unacceptable - Contributory conduct 50 percent - Applicant took no steps to find alternative employment - Stud consultant
Result: Application granted ; Reimbursement of lost wages ($1,442.31) ; Compensation for humiliation etc ($5,000 reduced to $2,500) ; Costs reserved
Farmer v Advance International Cleaning Systems (NZ) Ltd
28 Mar 2007, PR Stapp, WA 46/07, (8 pages)
UNJUSTIFIED DISMISSAL - Whether dismissed or abandoned employment - After lengthy period of unpaid sick leave, applicant worked one day then did not return - Received letter stating respondent could no longer hold position open - Later applicant told could return if obtained medical clearance - Reasonably open to applicant to interpret letter as dismissal - No notice or attempt to talk through possible retention of job - Wholly unjustified given shortness of time between return to work and dismissal - Given length of time position already held, could have given applicant more time and notice to avoid misunderstanding - However, reasonable for applicant to provide medical clearance and he had not adequately explained absence - Remedies - Applicant would have been entitled to four weeks notice to get medical certificate before losing job - However, not entitled to wages during that time since on unpaid sick leave - Applicant not necessarily able to work full time - Lost wages restricted to four weeks less earnings - PENALTY - Applicant sought penalties for not providing employment agreement, and wage, time and holiday records - Documents were eventually produced and no prejudice to applicant - BREACH OF CONTRACT - Counterclaim - Respondent sought damages for applicant's alleged failure to abide by commitments - Claim dismissed because of lack of detail - Service technician
Result: Application granted (dismissal) ; Reimbursement of lost wages ($2,563.08)(4 weeks less earnings) ; Compensation for humiliation etc ($1,000) ; Application dismissed (Penalty) ; Counterclaim dismissed
Higgins v 360 Degrees Ltd
30 Apr 2007, H Doyle, CA 48/07, (3 pages)
UNJUSTIFIED DISMISSAL – Constructive dismissal - Respondent in receivership – Receiver indicated would attend investigation meeting – No appearance by respondent – Applicant raised issue when pay reduced – Treated in abusive manner by director and threatened by co-worker – Told "don't bother coming back" when left premises – Applicant entitled to raise pay issue – Director in relationship with applicant's mother – Applicant did not return to workplace and moved out of mother's house – Breach of implied obligation not to act in manner calculated to destroy or damage relationship of trust and confidence – Foreseeable applicant would not return to work given seriousness of breach – Dismissal unjustified – Remedies – Leave reserved for applicant to return to Authority if had not received holiday pay – COSTS – Applicant submitted actual costs in vicinity of $1,500 – Telephone conferences and respondent's inability to be contacted about mediation taken into account – $1,500 suitable award - Factory hand
Result: Application granted ; Reimbursement of lost wages ($9,000)(18 weeks) ; Compensation for humiliation etc ($7,500) ; Orders accordingly ; Costs in favour of applicant ($1,500)
McCarthy v Centurion GSM Ltd t/a Digital Mobile & Anor
1 Mar 2007, R Arthur, AA 53/07, (15 pages)
UNJUSTIFIED DISMISSAL - UNJUSTIFIED DISADVANTAGE - Redundancy - Respondents submitted applicants employment ended through expiry of fixed term and not by redundancy - Alternatively argued genuine redundancy - Authority found first respondent employed and dismissed applicant - No written employment agreement - Applicant claimed oral terms of employment included rights to shares and directorship - Claimed offered and accepted employment on the basis of shares and directorship, but were removed without his agreement - Totality of evidence did not support applicants claim - Applicant more likely than not, took job because of opportunity to be an investor or partner - Applicant negotiated shareholdings in companies and attempted to obtain loan to pay for shares - Respondent refused to provide financial information, blocking loan and share transfer - Respondent expected applicant to put cash into business - Applicant asked to resign from directorships - Absence of written confirmation regarding arrangement of shareholding supported view that arrangement with applicant was as investor not as employee - Respondent not bound to assist applicant raise loan - Applicant entitled to four weeks annual leave - No reliable evidence of existence of fixed term agreement - No term requiring payment of redundancy compensation - Lack of written agreement meant applicant did not have specific redundancy terms - However, terms in draft EA provided four weeks salary as compensation - Commercial rationale for restructuring weak - Existence or need for position not issue - Issue salary that would be paid for position - No real evidence redundancy was because position no longer required - Respondent failed to provide "significant paper trail" indicating genuine commercial reasons for redundancy - Respondent also claimed incorrectly tendered redundancy compensation and seeks return of payment - Counterclaim unsuccessful - Redundancy unjustified - REMEDIES - Six months salary less ex gratia payment awarded - Regional operations manager
Result: Reimbursement of lost wages ($20,232.77)(6 months) ; Loss of benefit ($7500) ; Arrears of holiday pay ($4410) ; Compensation for humiliation etc ($8,000) ; Costs reserved
Sara v D H Bull (1988) Ltd
30 Mar 2007, P Cheyne, CA 34/07, (7 pages)
UNJUSTIFIED DISMISSAL - Constructive dismissal - Applicant claimed respondent breached apprenticeship agreement - Director originally agreed to be assessor - Later changed mind and prevented appointment of another assessor - No breach of duty - Director would not allow tutor to visit during work hours - Being difficult in response to deteriorating relationship - Breach of duty - However, not sufficiently serious to make resignation reasonably foreseeable - Director dissatisfied with applicant's work - Told him to re-evaluate position with respondent - Did not amount to ultimatum - Applicant found new position and resigned - Gave evidence would not have resigned until had other work - Led to conclusion conduct not dismissive - Applicant also claimed respondent's refusal to pay for upcoming course amounted to breach of duty - Could not claim constructive dismissal in anticipation of something that lay well in future - No constructive dismissal - UNJUSTIFIED DISADVANTAGE - No disadvantage arose from preventing tutor's visits - Applicant told to repay respondent full course and manual costs before left - Respondent demanded money or car keys - Conduct angry and abusive - No doubt applicant responded similarly, but responsibility for exchange rested principally with director - Unjustified disadvantage - Remedies - Compensation reflected applicant's comparatively minor contribution to situation - ARREARS OF WAGES AND HOLIDAY PAY - Respondent retained final pay against claim for manual and course fees - Money owing under original fees agreement deducted from arrears owing - Interest 9 percent - PENALTY - Respondent failed to pay arrears even though aware of legal obligations - Circumstances warranted penalty - COSTS - Less than one day investigation meeting - Applicant sought solicitor/client costs of $4,000 - $1,500 award appropriate - Apprentice engineer
Result: Application dismissed (Dismissal) ; Application granted (Disadvantage) ; Compensation for humiliation etc ($1,000) ; Arrears of wages and holiday pay (Quantum to be determined) ; Penalty ($1,000)(payable to Crown) ; Costs in favour of applicant ($1,500)
Sperry v River City Export Beef Ltd
31 Jan 2007, D Asher, WA 15/07, (6 pages)UNJUSTIFIED DISMISSAL - Summary dismissal - No appearance for respondent - Applicant's evidence accepted - Claimed he and other employees told at meeting respondent restructuring, to go home, and no longer had positions - Respondent claimed applicant part of seasonal shift layoff, no longer trading, and not in position to pay creditors - Claimed respondent continued to operate with another employee carrying out his work - Before accepting position, applicant received verbal confirmation position permanent - Offer of appointment and employment agreement did not define employment as seasonal - Uncontested evidence supported applicant permanent employee - Applicant not given access to information about continuation of employment or opportunity to comment - Constituted serious breach of statutory good faith obligations and case law requirements - Not advised of purpose of meeting or given opportunity to be represented - Presented with predetermined dismissal decision - Even if applicant seasonal employee, procedural shortcomings and breach of good faith obligations meant dismissal grievously unjustifiable - Dismissal unjustified - COSTS - Applicant sought relocation costs arising from new employment - Costs reasonably incurred and claim made out - Also sought compensation for lost earnings and travel expenses resulting from respondent's failure to attend mediations - Respondent's egregious conduct, including its subsequent conduct, warranted award - Respondent anticipated liquidation - No explanation for failing to attend investigation, except that had no funds and no point in applicant pursuing claim - Applicant sought costs of $1,300 - Claim modest and fell within typical awards - Applicant entitled to contribution to costs
Result: Application granted ; Reimbursement of lost wages ($1,300) ; Compensation for humiliation etc ($10,000) ; Reimbursement of other money lost ($600)(Relocation expenses) ; ($150)(Mediation costs) ; Costs in favour of applicant ($1,300)
Waipouri v Rightside Properties Ltd
30 Aug 2007, L Robinson, AA 268/07, (5 pages)
UNJUSTIFIED DISMISSAL - No appearance for respondent - Applicant's evidence unchallenged - Applicant told to "move on" when asked why wages not paid - Applicant rented room at respondent's hotel, and initially voluntarily assisted with hotel maintenance - Respondent's director and applicant subsequently agreed applicant would perform work - Agreed rent for room to be deducted from wages - No written employment agreement - Not paid weekly wages - Applicant advised director to meet with WINZ about alternative employment - Unknown to applicant, director secured subsidy agreement with WINZ - Subsidy scheme intended to assist applicant into full time work - Agreement corroborated applicant in full time employment with respondent - Applicant unaware of respondent's existence - Authority satisfied director acted as agent of respondent and failed to disclose his agency as principal - Director's sending away constituted dismissal - Actions not those of fair and reasonable employer - Dismissal unjustified - Remedies - Given required to show efforts to find employmet as condition of unemployment benefit, Authority satisfied applicant mitigated losses - Actual loss awarded - Cleaner/security
Result: Application granted ; Reimbursement of lost wages ($11,050)(25 weeks) ; Compensation for humiliation etc ($3,000) ; Costs reserved
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