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Chin v Yong t/a Yong & Co Chartered Accountants
4 Oct 2006, L Robinson, AA 312/06, (8 pages)
UNJUSTIFIED DISMISSAL - Constructive dismissal - Alleged badly treated by respondent and his business advisor - Respondent loaned applicant's husband ("JC") significant sum and agreed to keep loan secret - JC went bankrupt before loan repaid - Applicant unaware of situation until told by respondent's wife - Respondent met AW, a Scientologist - AW stress tested respondent and considered applicant cause of stress - AW convened meeting and interrogated applicant about JC and loan - Applicant stated husband's business activities not her concern and enquiries should be directed to him - Informed respondent felt uncomfortable, but he did not assist her - Applicant felt obliged to remain because employee - After meeting, applicant wrote to respondent recording discomfort - AW responded by asking her to come up with "written solution" to situation between JC and respondent - Applicant asked respondent to tell AW to stop harassing her - Respondent suggested applicant overreacting and again focused on loan - Applicant took sick leave but respondent and AW visited her residence - Police called when refused to leave - Applicant resigned - Loan to JC did not concern applicant, not fair and reasonable to hold her responsible for it - Respondent also made disparaging comments about applicant to other employees - Breach of duty owed to applicant - Breach so serious substantial risk of resignation reasonably foreseeable - Dismissal unjustified - Length of service seven months - Accounts clerk
Result: Application granted ; Reimbursement of lost wages ($3,653.85)(5 weeks) ; Compensation for humiliation etc ($5,000) ; Arrears of holiday pay ($2,192.31) ; Interest (9%) ; Costs reserved
Currie v McVicar Timber Group Ltd
5 Dec 2006, R Arthur, CA 168/06, (8 pages)
UNJUSTIFIED DISMISSAL - UNJUSTIFIED DISADVANTAGE - BREACH OF CONTRACT - Redundancy - Applicant claimed redundancy unjustified and unjustifiably disadvantaged - Claimed respondent breached obligation to negotiate terms and conditions of redundancy - Terms and conditions based on collective employment agreement ("CEA") - Individual employment agreement ("IEA") included all relevent terms of CEA - No redundancy compensation provision in IEA - CEA provided four weeks notice and negotiation of terms and conditions of redundancy - Applicant claimed offered new postion in Australia - Authority found prospect of new position still inquiry with no definitive elements of offer - Applicant advised position to become redundant - Refused "take it or leave it" cash settlement - Took stress leave - Respondent continued formal consultation process - No real challenge by applicant as to whether respondent genuinely considered restructuring needed - Making applicants position redundant better cost-saver than reducing other positions - Authority found some attention to procedural requirements, however, start of process unfair - Applicant unlikely to have anticipated vulnerability to job and believed future secure, because of job possibility in Australia - Respondent rejected applicants attempts to revive settlement offer, but did little or nothing to discuss how redundancy would be handled - Fair and sensitive employer would have discussed options with applicant - Instead, respondent imposed notice period paid in lieu and termination date one day after dismissal - Disputed clause created contractual right that terms and conditions of redundancy shall be negotiated - Authority could not determine what terms should have been agreed - IEA provided parties to ascertain amount of payment by negotiation - Clause created legally enforceable right to negotiate on range of items or matters - Once settlement offer lapsed, respondent closed its mind to consideration of other terms and conditions of redundancy, which was obliged to at least discuss - Obligation to negotiate breached - Unjustified disadvantage - REMEDIES - Breach denied applicant opportunity to secure more favourable outcome - Real and substantial chance respondent approaching issue with open mind would have agreed to redundancy on terms better than four weeks notice, but below full measure of compensation in settlement offer - Value of lost opportunity would have at least been extended notice period - 12 weeks notice appropriate - Length of service 30 years - Sawmill manager
Result: Application granted (Unjustified disadvantage) ; Loss of benefit (12 weeks notice) ; Compensation for humiliation etc ($5000) ; Costs reserved
Daske v Tile New Zealand Ltd
11 Dec 2006, M Urlich, AA 375/06, (4 pages)
UNJUSTIFIED DISMISSAL - Whether dismissed or resigned - Applicant employed on fixed term agreement to complete project - Fixed term extended when project not completed - Extension not in writing - No evidence to support respondent's claim parties agreed on new end date - Requirements of s66 Employment Relations Act 2000 not met - Permanent employee - Rumour applicant leaving led respondent to ask applicant to confirm it, which she did - Respondent had reasonable basis for believing applicant resigned - Conflict of evidence over what happened next day - Applicant claimed went to work and respondent sent her away - Respondent claimed applicant there to return uniform and asked about holiday pay - Respondent's evidence preferred - Applicant resigned - No personal grievance - Applicant had limited English skills and daughter had attended workplace as volunteer to translate - Length of service 11 months - Showroom assistant
Result: Application dismissed ; Costs reserved
Garas-Endrawis v Albany Food Warehouse Ltd
23 Nov 2006, R Monaghan, AA 354/06, (9 pages)
UNJUSTIFIED DISMISSAL - Alleged actual or constructive dismissal - Applicant injured back at work - Matter referred to ACC - Medical certificate stated applicant not fit for heavy lifting - No light duties available - Applicant sent home - No dismissal at this time, open ended nature of absence not unknown in employment law and respondent should have been advised of progress - However ACC concluded employment had ended - Applicant found out employee number assigned to someone else and concluded employment terminated - Respondent to clarify matter - Received indication that employment terminated - Should have contacted employer, not ACC - Acquiesence by applicant considered by respondent that employment abandoned - Authority concluded circumstances amounted to combination of misunderstanding and miscommunication, but no dismissal - Matter transferred to business services manager ("KP") - Applicant informed that still a staff member and still on payroll - Applicant indicated would not be able to do checkout job - Applicant would not accept alternative employment at position of lower level than what she was qualified for - Applicant failed to distinguish between wider vacancies that ACC recommended and work respondent might offer in interests of continuing her employment - Applicant not entitled to expect kind of work that was being explored by ACC - Applicant told if could not work as checkout operator then should resign - Letter sent to applicant requesting confirmation of termination - Applicant confirmed position should be terminated - Overall, circumstances amounted to termination by consensus - No dismissal - UNJUSTIFIED DISADVANTAGE - Changes to hours made by agreement - No unjustified disadvantage - ARREARS OF WAGES AND HOLIDAY PAY - Claim for unpaid holidays dismissed - No need for notice since termination by consensus - Length of service 15 months - Checkout assistant
Result: Application dismissed ; Costs reserved
Van Leeuwen v Canterbury District Health Board
22 Nov 2006, J Crichton, CA 160/06, (9 pages)
UNJUSTIFIED DISMISSAL - UNJUSTIFIED DISADVANTAGE - Constructive dismissal - Alleged respondent failed to act when bullied and harassed by co-worker - Applicant never formally complained about co-worker, despite being asked - HR adviser worked with both employees and viewed problem as personality conflict - Applicant encouraged to take time off because faced external pressures, as well as work difficulties - Went on sick leave and effectively never returned - Authority satisfied respondent did not suggest applicant resign or try to force him out of position - Applicant interested in returning when co-worker resigned - Original position changed, so offered alternative roles - Parties attended mediation on issue of returning but it remained unresolved - Evidence did not support categorisation of events as bullying or meet definition in respondent's policy - Unsatisfactory personal relationship between co-workers could not constitute bullying in a legal sense - Co-worker regarded herself as victim of bullying because of applicant's regular complaints - Refusal to lodge formal complaint went against wish to categorise problem as bullying - Within framework of informal complaint process chosen by applicant, respondent did all reasonably could to address his concerns - Authority's only concern was perhaps respondent did not make consequences of not making formal complaint as abundantly clear as might have been appropriate - Clear reasons, related to natural justice, formal investigation into co-worker's behaviour could not take place without formal complaint - Evidence strongly suggested applicant resigned after reading medical report stating fit to return to work with conditions - Authority of view he acted prematurely and denied respondent opportunity to work with him to resolve issue - Effectively confirmed decision by refusing to meet with respondent - No unjustified disadvantage - No constructive dismissal - Length of service two years five months - Occupational therapy instructor
Result: Application dismissed ; Costs reserved
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