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Farley v Nugget Point Resort Ltd
20 Nov 2006, H Doyle, CA 158/06, (18 pages)
UNJUSTIFIED DISMISSAL - Constructive dismissal - Resignation attributable to actions of respondent - Whether course of conduct with dominant purpose of coercing applicant to resign - Disciplinary meeting held over allegation applicant misused leave - Director advised applicant to consider matter over and move on - Applicant read draft of letter directors intended to give him on computer - Likely accessed director's personal folder - Applicant invited to further disciplinary meeting - Advised unable to attend as on stress leave - Start of email exchange - Communications from director not designed to maintain productive relationship - Director advised had spoken to applicant's doctor and police involved - When stress leave ended director advised not required to work - Resigned later that week - Emails unfair in terms of process and demonstrated lack of understanding of boundaries of employment relationship and applicant's right to privacy - Applicant young and emails designed to concern him - Behaviour capable of seriously damaging parties' relationship - Potential for applicant's relationship with doctor to be seriously undermined - Not fair to reopen investigation - Failure to continue to pay wages and subsequent communications suggested element of predetermination - Emails could be seen as having deliberate and dominant purpose of attempting to coerce applicant to resign - Respondent breached obligation not to act in manner likely to destroy trust and confidence between parties - Breach of contract and good faith as failed to pay applicant while on stress leave yet expected him to attend disciplinary meeting - Also breaches as failed to explain reasons for stopping payment when asked - Breaches serious and so undermining of employment relationship applicant entitled to treat contract as repudiated and resignation reasonably foreseeable - Fair and reasonable employer would have considered warning - Constructive dismissal - Remedies - Unlikely employment would have continued much longer - Authority had regard to notice period when setting lost wages - Applicant to bear some responsibility for police becoming involved - No compensation for police involvement or humiliation resulting from reading draft letter - BREACH OF CONTRACT - Counterclaim - Applicant breached obligations of trust and confidence by accessing director's folder without authorisation - Computer expert's charges were loss suffered as result of breach - However, putting allegation to applicant may have made expert unnecessary - Specialist advice not contemplated by parties as probable result of breach when employment agreement made - Respondent not entitled to recover damages - Manager
Result: Application granted (Unjustified dismissal) ; Reimbursement of lost wages (Four weeks) ; Compensation for humiliation etc ($10,000) ; Arrears of holiday pay (Half a lieu day) ; (One day sick leave) ; Application granted in part (Counterclaim) ; Costs reserved
Hiddleston v Wattyl (NZ) Ltd
24 Nov 2006, P Cheyne, CA 163/06, (7 pages)
UNJUSTIFIED DISMISSAL - Dismissal on medical grounds - Applicant required surgery after injured at work - Before surgery, suffered heart attack and absent 3½ months - Returned to work but surgery rescheduled for that week - After surgery applicant required five months off to recuperate - Respondent asked if applicant would consider early retirement but no agreement reached - Applicant left work with respondent knowing would be away five months - Manager concerned about applicant's attendance and work ethic and intention to work until well after retirement age, which Manager found totally unacceptable - Upon discharge from hospital applicant received letter detailing respondent's concerns and asking him to put forward information to be considered as part of decision about ongoing employment - Letter advised not possible to hold position open for five months and probable employment would be terminated on medical grounds - Applicant rang supervisor, who was unaware of letter - Also faxed medical certificate to manager - Applicant subsequently received dismissal letter - Respondent failed to raise concerns about applicant's alleged general poor state of health with him - Also failed to advise applicant in timely way job could not be kept open - Dismissal unjustified - Remedies - Unable to find alternative employment - Applicant sought lost remuneration from time medically fit until age 66 on basis would have kept working - Appropriate to award future loss - Limiting award until age 65 made allowance for unexpected - Length of service nearly 20 years - Storeman
Result: Application granted ; Reimbursement of lost wages and benefits (9 months) ; Future loss of remuneration and benefits (5 months) ; Compensation for humiliation etc ($12,500) ; Costs reserved
McKay v Woodend Preschool & Nursery Ltd t/a Minnies Preschool
30 Nov 2006, P Montgomery, CA 166/06, (6 pages)
UNJUSTIFIED DISMISSAL - Whether dismissed or resigned - Applicant employed on fixed term while permanent employee ("KR") on parental leave - Respondent claimed applicant resigned and later changed her mind - Applicant alleged director became angry and threatened her - Respondent's evidence preferred - Applicant had previously signalled would leave early if found new position - In circumstances, brief conversation with director about resignation adequate - Communication from applicant not ambiguous and director did not seize upon unintended words capable of amounting to resignation - Written notice not required - No onus on employer to determine if resigning employee had alternative employment - Open to respondent to contact KR and once she agreed to return, balance of original agreement unavailable to applicant - Applicant had not asked to withdraw resignation but appeared to think just had to notify respondent intended to stay - Withdrawal of resignation could not be made unilaterally - Applicant resigned - No personal grievance - Length of service 10 months - Early childhood educator
Result: Application dismissed ; Costs reserved
Samson v K & T Renata Transport Ltd
13 Dec 2006, M Urlich, AA 377/06, (5 pages)
UNJUSTIFIED DISMISSAL - Constructive dismissal - Respondent claimed applicant dismissed because persistently failed to perform duties - Respondent proposed change from salary to hourly rate - Applicant rejected proposal and claimed meeting became hostile when raised issue of deductions from pay - Filed assault charges with police over actions of director's father but matter not prosecuted - Director denied being hostile towards applicant and alleged he threw cell phone - Authority satisfied some form of altercation occurred - Respondent submitted not responsible for actions of director's father as not employee - Argument did not stand as father worked part time for company and to objective observer represented respondent at meeting - For director to allow father to assault applicant amounted to serious failure by respondent to maintain obligations to provide safe workplace - Applicant's doctor placed him on stress leave - Respondent denied receiving medical certificate but Authority found applicant made reasonable efforts to send it - After representative raised personal grievance and deductions issue, applicant received dismissal letter - Reasonable for applicant to form view respondent would not abide by terms of employment agreement - Constructive dismissal - In event Authority wrong, actual dismissal unjustified as no reasonable basis for it - Remedies - Although tossing cell phone unwise, not blameworthy conduct which contributed to dismissal, reaction not proportionate - PENALTY - Applicant alleged unauthorised deductions from wages - Although agreed to deductions no evidence of written consent - Respondent failed to comply with Wages Protection Act 1983 - Penalty appropriate - ARREARS OF HOLIDAY PAY - Calculation of holiday pay referred to Labour Inspectorate - Authority had not yet received Inspector's report - Claim stayed pending further information - Length of service seven months - Driver
Result: Application granted ; Reimbursement of lost wages ($3,588)(23 days) ; Compensation for humiliation etc ($4,000) ; Penalty ($200)(Payable to Crown) ; Costs reserved
Tatom v Duffield
16 May 2007, H Doyle, CA 55/07, (11 pages)
JURISDICTION - Whether employee or independent contractor - No written employment agreement - Parties did not put minds to nature of relationship - Authority unable to conclude common intention - Factors indicative of employment relationship outweighed factors indicative of independent contractor - Real nature of relationship employment - Employee - UNJUSTIFIED DISMISSAL - Applicant made statements to government department relating to respondent's partner, an employee of that department - Partner subsequently dismissed - Probable respondent knew of statements and likely would have been angry and raised them - Authority found respondent said words to effect of "X is fired so you're fired" - Fair and reasonable employer would have met or at least written to applicant and explained difficulties of continuing working together - Should have negotiated notice period - Instead, summarily dismissed and applicant's partner threatened - Unjustified dismissal - Remedies - Fact employment short, and applicant unlikely could have continued working, relevant to award of lost wages and compensation - ARREARS OF HOLIDAY PAY - No details of earnings provided - Leave reserved for applicant to return to Authority if wished holiday pay to be calculated - Counterclaim - Respondent counterclaimed against applicant for slander and defamation of character, and sought lost earnings and compensation - Argued statements about to government department false - Respondent seeking damages flowing from dismissal of his partner by her employer - Authority did not have jurisdiction - Counterclaim dismissed - COSTS - One ½ hour investigation meeting - Costs of $1,000 appropriate - Length of service two months - Hammer hand
Result: Application granted (Jurisdiction, unjustified dismissal) ; Reimbursement of lost wages ($2,720) ; Compensation for humiliation etc ($5,000) ; Counterclaim dismissed ; Costs in favour of applicant ($1,000)
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