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Barrett & Anor v The Matai Club Inc
8 Dec 2006, P Montgomery, CA 174/06, (5 pages)
UNJUSTIFIED DISMISSAL - Redundancy - Applicants claimed redundancies shams and process seriously flawed - Respondent contended applicants ("B") and ("M") positions genuinely surplus to requirements, however, conceded procedure adopted to dismiss applicants seriously flawed - Given respondent's concession, investigation meeting focused on justification for redundancies and effect on applicants - Financial situation of respondent necessitated realigning tasks to reduce overhead costs and avoid insolvency - Evidence reflected financial difficulty of club - Respondent found it could operate reasonably well without "Secretary/Manager" position but could not operate without "Office administrator" position - New executive manager position created incorporating duties from "Office administrator", "Secretary/Manager", and "Bar manager" positions - Authority found was an option available to respondent - B invited to apply for new position but did not apply - Authority found genuine reasons for redundancies - M's claim employed under 30 month fixed term contract not made out - Remedies - Applicants also claimed were seriously embarrassed when friends saw "their" jobs advertised - Both applicants given appropriate notice which was either worked out or paid in lieu - No awards made for lost remuneration - Public inferences drawn from job advertisements or resulting hurt could not be fairly laid at the door of employer - However, appropriate applicants awarded compensation for hurt and humiliation suffered - Bar manager and secretary/manager
Result: Applications granted ; Compensation for humiliation etc ($8000)(B) ; ($6000)(M) ; Costs reserved
Barry v Anoop Investments Ltd and Ors
18 Jan 2007, M Urlich, AA 11/07, (5 pages)
PRACTICE AND PROCEDURE - No written employment agreement - Identity of employer - First respondent company and its directors named respondents - Applicant believed director personally employed him - Authority satisfied first respondent applicant's employer - ARREARS OF WAGES - Applicant claimed agreed to work no less than 40 hour weeks and sought arrears when rostered less than 40 - Not credible applicant would have waited to assert agreement - No agreement applicant to work minimum of 40 hours - Respondent presented new roster reducing applicant's hours - Authority not satisfied respondent conducted transparent consultation process - Applicant did not agree to permanent reduction - Implementation of roster breached terms of employment agreement - Respondent ordered to pay arrears for days applicant rostered off as result of reduction until resignation - Insufficient evidence parties agreed to loyalty bonus - Bonus claim dismissed - UNJUSTIFIED DISMISSAL - Constructive dismissal - Respondent told applicant could not afford to employ him and to look for other employment - Applicant raised arrears claim and personal grievance - Claimed employment relationship deteriorated and put under stress causing his resignation - Breach did not cause resignation as reduction issue ongoing over period of year - Other alleged breaches not sufficiently serious that risk of resignation reasonably foreseeable, and allegations not raised with respondent - No constructive dismissal - UNJUSTIFIED DISADVATANGE - Disadvantage claim out of time - PENALTY - Respondent failed to provide written employment agreement - Failure created uncertainty about terms of employment - However, intended to provide written employment agreements to staff but overlooked applicant - Oversight not wilful avoidance of s65 Employment Relations Act 2000 obligations - Penalty declined - Butchery manager
Result: Applications dismissed (Unjustified dismissal, unjustified disadvantage) ; Arrears of wages (Quantum to be determined) ; Costs reserved
Clear v Waikato District Health Board
13 Feb 2007, J Scott, AA 33/07, (51 pages)
UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Alleged disadvantaged by failure to properly investigate complaints or provide safe work environment - Also claimed unjustified dismissal - Applicant believed bullied by team leader ("TL") for 16 years - Described TL as "organisational psychopath" - After raising numerous complaints applicant told manager wanted TL's employment terminated - Respondent agreed to investigate 32 concerns ("fourth complaint") - Applicant requested further EAP counselling - Respondent considered psychiatric assessment more appropriate - Applicant exhausted sick leave and sought discretionary leave - Leave declined as 500 hours annual leave available and reason cited for leave (post-traumatic stress disorder) could only be professionally diagnosed - Respondent decided to take no further steps without psychiatrist's report - Concluded allegations against TL not justified and inappropriate to continue investigation - Conclusion never communicated to applicant - Respondent then focused on finding solution to allow applicant to return to work - Advised employment would end unless returned to original position - When applicant did not respond, employment terminated - No grievance in relation to first three complaints - Respondent had no knowledge of applicant's stress or health until took leave - Took all reasonable steps to ensure applicant's safety - However, investigation into fourth complaint became unfair - Respondent developed closed mind towards applicant - Scope and depth of inquiry too limited - Application for discretionary leave bungled - No contractual right to require psychiatric assessment - Breach of duty to halt investigation until applicant complied - Failure to adequately communicate with applicant compounded matters - Respondent also concluded TL bullied by applicant but did not advise her of finding - Investigation not full and fair - However, applicant's demand TL's employment be terminated contradicted concept of fair inquiry and predetermined outcome - Breach of duty to carry out full and fair investigation into fourth complaint - Unjustified disadvantage - Applicant suffered no additional harm as result of breach of duty - However, treatment frustrating and humiliating - Although relationship dysfunctional, applicant not bullied by TL - Claim based on failure to provide safe workplace declined - No positions available for which applicant qualified and willing to undertake - Dismissal justified - Remedies - Parties directed to mediation to discuss remedies - Nurse/Midwife
Result: Application granted in part (Disadvantage) ; Application dismissed (Dismissal) ; Parties directed to mediation ; Orders accordingly ; Costs reserved
Cunneen v Shore Foods Ltd
14 Feb 2007, R A Monaghan, AA 34/07, (6 pages)
UNJUSTIFIED DISMISSAL - Constructive dismissal - Applicant wrote off two company cars in month - Parties agreed applicant would do other duties while insurance issues resolved - Applicant later dissatisfied with change - Asked for clarification of insurer's position from respondent but received no reply - Respondent also sought to raise issues related to provision of medical certificate and personal calls - Respondent told applicant could resign or might face disciplinary action - Respondent raised resignation as aware applicant considering moving overseas - Dominant purpose to clarify need to continue disciplinary action - Applicant later stopped by police driving company truck without appropriate license - When respondent indicated need for further disciplinary meeting applicant thought resignation most attractive option - Applicant not given bare choice of resign or be dismissed - Told facing disciplinary action, which could include dismissal - Fair to be warned of this - Genuine reasons for disciplinary meetings, not seeking to coerce resignation - Removal of sales duties not breach of employment agreement and reasonable in circumstances - Mixed messages to applicant regarding use of vehicles poor management, not breach of duty - Lack of resolution of insurance issues unsatisfactory, but not breach of duty - No constructive dismissal - Sales representative
Result: Application dismissed ; Costs reserved
Fraser v The Vice Chancellor of the University of Otago
22 Aug 2007, H Doyle, CA 22A/07, (26 pages)
UNJUSTIFIED DISMISSAL - Applicant claimed constructively dismissed due to mismanagement by HOD of difficult relationship with co-worker ("S") - Applicant resigned giving four months notice, citing stress problems - Applicant's lengthy notice period, and actions during it inconsistent with claim for constructive dismissal, and affirmed her contract of employment with respondent in knowledge of any breach - Authority found, if incorrect, any breaches not sufficiently serious to make resignation reasonably foreseeable - No constructive dismissal - UNJUSTIFIED DISADVANTAGE - Head of department breached obligations of trust, confidence and good faith by not following up with applicant after she raised concerns about S at performance review - Respondent's actions in not investigating whether applicant well enough to work notice period, and failing to investigate whether workplace safe to work out notice, unjustified - Actions not fair and reasonable in circumstances - Unjustified disadvantage - Remedies - Entitled to compensation for first breach - Applicant's stress increased during notice period - Applicant contributed to second breach, because did not advise unwell, or take all practical steps to ensure own safety at work - Also did not appear to have followed medical advice to take break before working again - Proper communication would probably have resulted in applicant taking leave for part of notice period - Real likelihood recuperation period could have been reduced - Constituted contributory conduct - Contribution taken into account in lost wages, and compensation award for second breach
Result: Application dismissed (Unjustified dismissal) ; Application granted (Unjustified disadvantage) ; Reimbursement of lost wages (13 weeks reduced to 6½ weeks) ; Compensation for humiliation etc ($3,000)(First breach) ; ($6,000)(Second breach)
Greenwood v Vodaphone New Zealand Ltd
30 Jan 2007, Y S Oldfield, AA 22/07, (13 pages)
UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Constructive dismissal - Incompatibility - Applicant claimed respondent failed to provide safe working environment - Authority not satisfied applicant bullied - Applicant argued even if not bullied, relationship dysfunctional and source of stress and confusion - Also claimed no management support - Required to solve difficult problems as inherent part of job - Operational matters did not pose foreseeable risk to applicant - Progress made in addressing personal conflicts - Confusion about role not addressed - Applicant claimed informal 2IC and "dotted line" reporting relationship with co-worker - Underlying cause of conflict with co-worker - Respondent denied applicant had that responsibility and no evidence gave this impression - However, applicant unjustifiably disadvantaged as manager failed to see applicant under misapprehension when should have been plain - Issues combined to cause significant stress and factor in ill heath - Authority not satisfied work only, or even primary cause - Assertion personal problems did not contribute to health issues not credible - Manager's knowledge of personal problems through friendship with applicant did not put respondent on notice applicant particularly at risk - Applicant went on stress leave then short term secondment - Managed return to original role proposed but applicant resigned before further meeting to discuss return - Respondent took reasonable steps to prevent further harm - Not reasonable for applicant to refuse to participate - No breach of duty - No constructive dismissal - Also disadvantaged by loss of remuneration as some leave taken without pay - Remedies - Contributory conduct - Applicant's actions contributed to workplace conflict - Personal problems contributed to distress - Team manager
Result: Application dismissed (Dismissal) ; Application granted (Disadvantage) ; Compensation for humiliation etc ($6,000) ; Costs reserved
Hakansson v Esther Monteith t/a Centre Cafe
1 May 2007, GJ Wood, WA 68/07, (5 pages)
UNJUSTIFIED DISMISSAL - Whether dismissed or resigned - Applicant irritated with co-worker and left work 10 minutes early saying "Going a little early - I'm out of here - See ya" - Respondent alleged intended to quit as took books - Later rang applicant who denied quitting - Respondent insisted employment over - Applicant subsequently went to work as usual - Barred from entering premises and believed dismissed - Respondent right to follow up as applicant's words and actions ambiguous - However, became clear had not intended to resign - Dismissed as respondent insisted had resigned and refused to allow re-entry to premises - Dismissal unjustified - Remedies - Limits applicant placed on doing temporary work taken into account when awarding lost wages - Given applicant had not taken breaks that day, leaving a bit early not blameworthy compared with respondent's response - Penalty not appropriate - ARREARS OF HOLIDAY PAY - Despite undertaking from respondent holiday pay not paid - Arrears due and owing - Cook
Result: Application granted ; Reimbursement of lost wages ($10,920) ; Compensation for humiliation etc ($8,000) ; Costs reserved
Hao v Driving Force Ltd
6 Dec 2006, R Arthur, AA 368/06, (5 pages)
UNJUSTIFIED DISMISSAL - Respondent claimed applicant not dismissed, but chose to leave at end of trial period - Alternatively argued dismissal warranted because of performance issues - Whether applicant on trial period or permanently employed - No evidence of trial period or fixed term - Employment on on-going basis - No written employment agreement - Sales target discussed not met by applicant - Applicant did not comply with respondent's instruction to make sales calls at beginning of each day - Applicant's car not repaired as asked by respondent - Respondent claimed would "shut the door" if sales did not improve - Applicant claimed "all of a sudden" told to go home - Employment relationship not ended by mutual agreement at expiry of trial period - Applicant dismissed - Whether respondent properly put applicant on notice performance inadequate and job at risk - No evidence of required systematic process of addressing performance - Applicant not given real opportunity, faced with prospect of dismissal, to explain performance or address factors inhibiting him from meeting sales targets - Respondent abruptly called end to employment relationship - Post-facto justifications not relevant to whether followed fair process - Dismissal unjustified - Remedies - Although denied opportunity to improve, applicant's performance may well have resulted in termination of employment within few months - Applicant failed to follow directions - Contributory conduct 50 percent - Sales representative - Length of service 6 months
Result: Application granted ; Reimbursement of lost wages ($4,320 reduced to $2,160) ; Compensation for humiliation etc ($2,000 reduced to $1,000) ; Disbursements in favour of applicant (Filing fee)($70)
Hardy v Scoopy's ice Cream Parlour (Whangarei) Ltd
15 Feb 2007, R A Monaghan, AA 36/07, (7 pages)
UNJUSTIFIED DISADVANTAGE - Applicant alleged hours unilaterally reduced and unjustifiably suspended and warned - No appearance by respondent - Applicant asked for Saturdays off - Removed from weekends altogether and start time changed - Removal of Sunday work unjustified - Applicant complained about reduction and got union involved - Later received letter from respondent containing number of performance and misconduct allegations - Advised letter was written warning and suspended without pay until matter resolved - Warning issued before concerns put to applicant - Nature of concerns did not justify suspension in absence of employment term permitting it - Warning and suspension unjustified - UNJUSTIFIED DISMISSAL - Constructive dismissal - Claimed unjustified disadvantages constituted repuditory conduct - After unsuccessfully trying to arrange meeting with union, respondent attempted to contact applicant directly - Told applicant to report to work for disciplinary meeting - Issued second warning when she did not attend - Final warning issued for taking information without authority and applicant told to return uniform - Not appropriate to say suspension indefinite - Matters complicated by discussions about exit package and failure of respondent and union to arrange early meeting - Respondent should not have attempted to bypass union - Breaches by respondent numerous and significant - Failed to treat applicant fairly and reasonably - Failure to return to work foreseeable - Constructive dismissal - Remedies - Contributory conduct - Defying new roster ill-advised and applicant admitted unauthorised breaks - Not satisfied start time a condition of employment - Further claim for holiday pay raised inappropriately - Any underpayment likely to be minimal and matter not taken further
Result: Application granted ; Reimbursement of lost wages ($126)(Reduction in hours) ; ($630)(Suspension) ; ($2,730)(13 weeks)(Dismissal) ; Holiday pay ($209.16) ; Compensation for humiliation etc ($5,000) ; Costs reserved
Holding v Design and Arts College of New Zealand Ltd
20 Dec 2006, J Crichton, CA 179/06, (7 pages)
UNJUSTIFIED DISMISSAL - UNJUSTIFIED DISADVANTAGE - Constructive dismissal - Applicant claimed respondent attempted to alter terms of employment - Respondent submitted changes agreed to and benefited applicant - Applicant paid significantly less than others in same position - Respondent claimed reflected unique employment terms - Applicant alleged respondent did not address concerns and considered relationship deteriorated further after supported colleague with personal grievance - Authority did not accept managing director ("MD") lied to applicant about intention to purchase respondent - MD asked applicant if intended to resign - Words ill-judged but not coercion when placed in context - Applicant had resigned twice before when dissatisfied with employment - MD felt had to accept third resignation as applicant not committed to new business vision - Decision not to seek to change applicant's mind understandable - Changing workplace and occasional unpleasantness between parties did not create unsafe environment - Allegation respondent failed to preserve employment relationship completely without merit - No evidence to support contention of direct discrimination against union members - Respondent raised 90 day issue - Authority did not accept that every breach which might ground constructive dismissal allegation must be subject of separately raised personal grievance - Only one breach or unjustified action by respondent - Failure to consult when business sold - No evidence applicant disadvantaged - Resignation not coerced - Although applicant regularly mentioned being under pressure, no evidence told employer unwell because of it - Not unreasonable stress - Work not intrinsically unsafe - No requirement employer rebut presumption of dismissal in constructive dismissal case - No constructive dismissal - Length of service 7½ years - Faculty director
Result: Application dismissed ; Costs reserved
Miller v Auckland Cat Practice Ltd
27 Feb 2007, L Robinson, AA 51/07, (5 pages)
UNJUSTIFIED DISMISSAL - Applicant resigned from full time position but agreed to stay on part-time to train replacement - New employment agreement set out temporary nature of training role - No suitable replacement found - Applicant claimed accepted permanent part-time employment with job share arrangement - Subsequently told employment being terminated on notice - Around same time respondent advertised for part-time administrator - Applicant raised issue with director - Told termination would stand and not offered position because of financial considerations - Respondent claimed applicant temporary employee and employment ended according to agreement - Applicant offered ongoing indefinite employment when invited to job share - No cause for dismissal - Dismissal unjustified - Office manager
Result: Application granted ; Reimbursement of lost wages ($2,905) ; Compensation for humiliation etc ($5,000) ; Costs reserved
Pech v Frederic Developments Ltd
28 Feb 2007, L Robinson, AA 52/07, (4 pages)
UNJUSTIFIED DISMISSAL - No appearance for respondent - Earlier determination found applicant an employee - Parties did not use mediation - Applicant's evidence unchallenged and accepted - Applicant claimed respondent's director telephoned saying was broke and could not go on with project, and all staff "let go" - Applicant drove past workplace and saw staff still working - When called director, director said did not want applicant anymore - Respondent did not attend to justify termination and Authority could discern no basis for justification - Dismissal unjustified - ARREARS OF HOLIDAY PAY - Holiday pay due and owing - Interest 8 percent - Project manager
Result: Application granted ; Arrears of holiday pay ($1,033.68) ; Reimbursement of lost wages ($20,880)(16 weeks) ; Compensation for humiliation etc ($8,000) ; Interest (8%)(On lost wages and holiday pay) ; Costs reserved
Pounder v Studdard Holdings Ltd
26 Feb 2007, L Robinson, AA 48/07, (6 pages)
UNJUSTIFIED DISMISSAL - Applicant claimed did not resign but dismissed - Manager declined to accede to customer requirements as presented by applicant - Argument ensued - Authority accepted applicant angry and swore - Authority accepted co-workers evidence applicant said "I'm out of here" and "I've finished up" - Manager asked for applicant's keys as result of statement - Manager's request for keys did not constitute dismissal - Authority found applicant resigned from employment - However, unfair of respondent to rely on resignation given in heat of moment - Maintenance of resignation in circumstances where unfair to do so amounted to dismissal - Dismissal unjustified - Remedies - Applicant's actions wholly causative of situation - 100 percent contributory conduct - Used car salesman
Result: Application granted
Rarere v Electrotech Controls Ltd
2 Feb 2007, GJ Wood, WA 19/07, (11 pages)
UNJUSTIFIED DISMISSAL - UNJUSTIFIED DISADVANTAGE - Constructive dismissal - Applicant claimed unjustifiably dismissed and/or disadvantaged after declined to continue as casual employee when completed apprenticeship - Applicant originally employed under several fixed term agreements - No legitimate expectation of ongoing employment once apprenticeship concluded - Employment agreement provided employment automatically terminated after 8,000 hours or qualification completed - Applicant completed 8,000 hours but employment continued without comment - When applicant completed qualification respondent gave notice and offered her casual position until passed registration exam - Applicant went on sick leave and never returned - Once hours completed employment became permanent - Entitled to ongoing employment - Reasonable for applicant to decline casual employment - Constructive dismissal - Could also be unjustified disadvantage as security of employment wrongly diminished - BREACH OF CONTRACT - Respondent not responsible for CD applicant loaned to co-worker - Applicant not entitled to travel allowance - Employment agreement provided subsidised medical insurance after three months employment - Applicant not given benefit for two years - Sought damages to cover medical claims - Loss direct result of respondent's failure - Claim offset against contributions applicant required to make - Penalty not appropriate - Electrical apprentice
Result: Application granted ; Reimbursement of lost wages ($8,482.15)(13 weeks) ; Compensation for humiliation etc ($7,000) ; Damages ($939.92) ; Costs reserved
Rider v Stratford By Products Ltd, also t/a Taranaki Abattoirs (1992) Ltd
23 Jan 2007, GJ Wood, WA 8/07, (4 pages)
UNJUSTIFIED DISMISSAL - Whether dismissed or resigned - Credibility finding against applicant - Authority found applicant decided to resign after suffered second injury at work - Announced intention to leave immediately during heated discussion with manager - Manager acted as fair and reasonable employer - Sought to find out and discuss reasons for leaving and tried to get applicant to defer making decision on the spot - Applicant later went to doctor and obtained medical certificates stating unfit for work - Remained on ACC for considerable period, despite respondent disputing his eligibility - ACC matter effectively closed as respondent chose not to challenge notification of acceptance of work injury - Applicant resigned - No personal grievance - ARREARS OF WAGES - Applicant not paid first week's ACC compensation after first injury - Respondent undertook to make payment to applicant - By-products operator
Result: Application dismissed (Unjustified dismissal) ; Application granted (Arrears of wages) ; Arrears of wages (1 week) ; Costs reserved
Selwood v Queen Margaret College Incorporated
23 Aug 2007, RA Monaghan, WA 42A/07, (38 pages)
UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - BREACH OF CONTRACT - Applicant claimed respondent removed IT management responsibilities, and threatened redundancy if did not accept new job description - Respondent introduced structured IT management system - Sought to have applicant take near full time teaching load - Applicant resigned - Authority found IT management responsibilities informal part of role only - Essence of job remained same - Did not amount to significant change to applicant's terms and conditions - Obligation to consult in employment agreement not triggered - No disadvantage in respect of teaching load, or requirement to move offices - No failure to acknowledge applicant's specialist skills - Respondent entitled to introduce management system - Applicant not entitled press for lightening of teaching load or keep responsibilities - Respondent not obliged to accede to his wishes - Letter from principal ("C"), mentioning redundancy, indicated termination of applicant's employment imminent if did not sign job description - Constituted breach of obligation to give notice and caused disadvantage - Unjustified disadvantage - Applicant claimed constructive dismissal - Principal ("C") went to considerable effort to discuss applicant's concerns and attempt to resolve them - Claimed disadvantaged by way incidents involving deputy principal and student handled - Neither incident constituted breach of duty or handled unfairly or unsatisfactorily - Also claimed denied support person at non-disciplinary meetings - Requirement for support person less fundamental when meetings non-disciplinary - No course of conduct with deliberate and dominant purpose of coercing resignation - Cumulative effect of respondent's conduct did not amount to breach of duty founding constructive dismissal - No constructive dismissal - Applicant's allegations respondent took retribution against witnesses dismissed - Remedies - Applicant claimed illness caused by stress as result of respondent's conduct, or stress masked symptoms of illness until became terminal - Evidence supporting claim sparse, and could be no more than speculative - ICT teacher and administrator
Result: Application dismissed (Unjustified dismissal) ; Application granted (Unjustified disadvantage) ; Compensation for humiliation etc ($5,000)(Disadvantage) ; Costs reserved
Skeggs v Radius Security Ltd
16 May 2007, L Robinson, AA 149/07, (12 pages)
UNJUSTIFIED DISMISSAL - Applicant claimed dismissed at end of purported fixed term - Agreement stated applicant to perform full time project work, with "expectation" of part time maintenance work at end of six months - Advised employment terminated at end of six months - Whether agreement fixed term - "Fixed term" clause stated no expectation of subsequent employment - However, further clause expected applicant to move to part time role - Not advised why employment to end - Authority found parties agreed to two phased employment - Expiration date of fixed term referred to end of first phase - Applicant elected to treat fixed term provision as ineffective, as conferred by s66(6) Employment Relations Act 2000 ("ERA") - Various provisions and other matters corroborated employment indefinite and not fixed term under s66 ERA - No basis for termination - Actions not those of fair and reasonable employer - Dismissal unjustified - Remedies - Interest 10 percent on lost wages award - BARGAINING - Applicant alleged unfair bargaining - Applicant signed agreement with chief executive - Director unhappy with agreement - Applicant not paid until second agreement signed - Not advised of opportunity to take advice - Applicant induced to enter agreement by oppressive means - Section 68(1)(a) ERA satisfied - Appropriate to award compensation for unfair bargaining - Financial officer
Result: Applications granted ; Reimbursement of lost wages ($35,700) ; Interest 10% ; Compensation for humiliation etc ($15,000) ; Compensation for unfair bargaining ($2,000) ; Costs reserved
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