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Baker v Dawson's Catering (NZ) Ltd
6 Nov 2006, V Campbell, AA 339/06, (6 pages)
UNJUSTIFIED DISMISSAL - Constructive dismissal - Casual employee - Respondent denied applicant dismissed - Claimed applicant went on sick leave and never returned - Nothing out of ordinary about unsuccessful pay review meeting - Performance issues raised appropriately with applicant - Applicant had infection and suffering from stress due to family situation - Respondent believed removing some duties from applicant would put him in less stressful situation - Suggestion put to applicant with assurance position as supervisor and level of hours would not be diminished - Applicant alleged demoted and action had effect of dismissing him - Took two weeks sick leave - Respondent claimed asked applicant to contact it when recovered, and gave evidence it attempted to contact applicant to offer work - No further contact made by applicant until statement of problem filed - On balance of probabilities applicant aware of performance issues - Respondent attempted to reduce impact work may have been having on applicant's stress by suggesting removal of some duties - Applicant not dismissed by those actions - Applicant knew if did not make contact with respondent no new work would be offered - Given casual nature of employment relationship Authority could not find actual or constructive dismissal - Length of service 1½ years - Functions supervisor
Result: Application dismissed ; Costs reserved
Barnett v McLoud t/a European Wholsale Cars
29 Mar 2007, R Arthur, AA 96/07, (4 pages)
UNJUSTIFIED DISMISSAL - Summary dismissal - No appearance for respondent - No written employment agreement - More likely than not applicant's evidence described employment and dismissal - On two occasions not paid wages or short paid, causing bank dishonour fees - Raised issue and respondent said "would take care of it" - Applicant sworn at and told to get off property when queried cheque payment - Respondent later alleged applicant casual employee and could not have been dismissed - Applicant employed to work on full time on-going basis - Sent away in manner unequivocally a dismissal - Fair and reasonable employer would have stated concerns and asked for explanation before deciding on disciplinary action - Appeared to be no issues of poor performance or misconduct - Dismissal unjustified - Identity of employer - Authority satisfied respondent applicant's employer - Must bear personal obligation of remedies - Respondent breached obligation to provide employment agreement - COSTS - One hour investigation meeting - Appropriate to award costs of $500 plus filing fee - Length of service not specified - Car groomer
Result: Application granted ; Reimbursement of lost wages ($2,240) ; Compensation for humiliation etc ($4,000) ; Costs in favour of applicant ($500) ; Disbursements ($70)(Filing fee)
Gillespie v Fox & Gunn Ltd
3 May 2007, M urlich, AA 137/07, (9 pages)
UNJUSTIFIED DISMISSAL - Constructive dismissal - Applicant provided witness statement against another employee ("M") for internal disciplinary investigation - Applicant agreed to make statement on condition name not disclosed to M - Assured statement would be held in confidence - Respondent on notice applicant felt threatened by M - Respondent's investigation found M made threatening comments to another employee - Disclosed applicant's name to M because thought withholding it procedurally improper - M confronted applicant after disciplinary meeting and she subsequently resigned - Resignation result of respondent's disclosure of applicant's identity - Resignation foreseeable - Applicant not told name would be disclosed or given opportunity to withdraw statement - Procedural pitfalls relating to M's disciplinary process could have been overcome if respondent obtained from applicant reason why scared of M - Respondent could then have justifiable basis to withhold applicant's name - Constructive dismissal - Length of service 14 months
Result: Application granted ; Reimbursement of lost wages (One week) ; Compensation for humiliation etc ($6,000) ; Costs reserved
Taufa v Lo Contractors Ltd
28 Nov 2006, M Urlich, AA 359/06, (3 pages)
ARREARS OF WAGES AND HOLIDAY PAY - No appearance by respondent - Applicant's unchallenged evidence accepted - No written employment agreement or pay slips - Applicant paid in cash - Claimed repeatedly queried irregular, and often short, payments with respondent - Applicant did not record hours or pay, but had pages from foreman's diary recording hours of work - Applicant had doubts about documents' accuracy but unable to specify concerns - Authority did not have enough information to determine arrears claim - Matter referred to Labour Inspectorate - Authority investigation into issue suspended - UNJUSTIFIED DISMISSAL - Personal grievance raised when respondent served with statement of problem - Requirements of s114 Employment Relations Act 2000 satisfied - Dismissed following exchange with respondent about wages owed and hours worked - Dismissal fell woefully short of expected standards of fair and reasonable employer - Applicant also had health and safety concerns about unsafe conditions of employment - Copy of determination to be referred to OSH - Remedies - Calculation of lost wages suspended pending outcome of Labour Inspectorate's investigation - Length of service five months
Result: Application granted (Unjustified dismissal) ; Compensation for humiliation etc ($6,000) ; Reimbursement of lost wages (3 months)(Calculation of quantum suspended) ; Application suspended (Arrears of wages and holiday pay) ; Orders accordingly ; No order for costs
Watt v Canterbury District Health Board
11 Aug 2006, P Cheyne, CA 122/06, (17 pages)
UNJUSTIFIED DISADVANTAGE - Alleged bullying and "mobbing" behaviour by colleagues Applicant removed from "family therapy team" ("FTT") - Prior unsuccessful grievance concerning non-appointment to manager position - Estopped from asserting historical bullying claims dealt with in earlier determination - Being prevented from involvement in FTT by removal, and other roles, would have made work significantly less satisfying - Loss of work, even if restored after six months, disadvantaged applicant - Managers should have canvassed feelings of mistrust with applicant before removed him from FTT - Unjustified disadvantage - UNJUSTIFIED DISMISSAL - Dismissed for serious incompatibility - Conflict created significant barrier to performance of many of applicant's duties - Applicant's belief in truth of historical bullying claims powerful factor in explaining his behaviour - Failure to conduct himself with colleagues on basis historical claims wrong largely caused conflict - No evidence dismissal pre-determined or respondent withheld redeployment options - Dismissal justified - BREACH OF CONTRACT - No evidence applicant's career development suffered - Colleagues' refusal to work with applicant not breach of trust and confidence or any express term of employment - Clause in collective agreement required respondent to treat applicant fairly, properly and openly - Concerns causing respondent to remove applicant from FTT not put to him - Removal without consent express or implied breach - Disadvantage finding also amounted to breach of express and implied terms of employment agreement - Remedies - No pecuniary loss caused by breaches - Could not be double recovery of compensation and damages for same incident - Breach not material cause of irreconcilable conflict that resulted in dismissal, nor did it contribute in material way to applicant's stress, leading to three months of sick leave - Length of service 21 years with respondent and its predecessors - Psychiatric nurse
Result: Application granted (Unjustified disadvantage, breach of contract) ; Damages ($5,000 for two breaches) ; Application dismissed (Unjustified dismissal) ; Costs reserved
Wyatt v Whangarei Boys' High School
21 Mar 2007, K Raureti, AA 85/07, (7 pages)
UNJUSTIFIED DISMISSAL - Constructive Dismissal - Applicant provided with reasonable induction when started job - Respondent concerned about applicant's level of experience and ability to handle position and communicated them in informal meeting - Applicant already told respondent had no intention of leaving - Respondent sought further advice from personal/industrial relations adviser - Respondent claimed second meeting conducted by adviser on "without prejudice" basis - Suggested exit package - Applicant believed dismissed - Respondent informed applicant could return but would have to discuss unresolved issues - Felt humiliated and did not want to return - Not forewarned of nature of meeting - No other solutions tabled - Merely covering procedural bases at start of meeting did not afford opportunity to clearly and without undue pressure or duress make informed decision - Manner meeting conducted breached duty and seriously eroded and undermined applicant's trust and confidence in respondent - Constructive dismissal - Remedies - Applicant's lack of technical knowledge and experience may have been core of problem but was not blameworthy conduct - No contributory conduct - Length of service 17 days - Accounts officer
Result: Application granted ; Reimbursement of lost wages ($5,755.50)(9 weeks) ; Compensation for humiliation etc ($5,000) ; Costs reserved
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