| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 28 |
| Hearing date | 20 Oct 2011 |
| Determination date | 20 January 2012 |
| Member | E Robinson |
| Representation | P Wicks ; P White |
| Location | Whangarei |
| Parties | Hansen v Bream Bay College |
| Summary | PRACTICE AND PROCEDURE – Applicant claimed unjustifiably disadvantaged and dismissed by respondent – Respondent claimed settlement agreement concluded between parties which precluded applicant from raising grievance – Applicant claimed settlement agreement unlawful as obtained by use of threat of complaint to Police – Respondent principal (“B”) advised applicant of allegations that applicant falsified internal moderation document, assisted daughter to write assignment and provided daughter with exam grades which had no relationship to daughter’s examination performance – B raised possibility that applicant could be deregistered as teacher – Applicant admitted had falsified moderation document and offered explanations for other two allegations – Advisor (“W”) for New Zealand School Trustees Association advised B and chairman of respondent board (“D”) that respondent could go to Police with applicant’s admission that forged document or proceed with disciplinary process without involving Police – B and D recommended to respondent board that appropriate course was to proceed with disciplinary process – Field officer (“K”) for New Zealand Post Primary Association claimed major concern for applicant was to avoid recommendation by respondent board to Teachers Council for deregistration – K and applicant discussed possibility of applicant offering to voluntarily end employment – Applicant told K best option was to remain employed by respondent – W made reference to K of fact respondent could raise applicant’s falsification of moderation document with Police – K passed on W’s oral statement to applicant which greatly concerned and worried applicant – K and applicant decided to formally explore possibility of voluntary exit – Respondent board authorised W to make without prejudice offer allowing applicant to resign – W made reference to possibility that Police could need to be notified of fraud – K did not regard comments about contacting Police as overt threats – K told applicant that respondent would not report matter to Police – Applicant instructed K to write to respondent board with proposal that applicant continue in employment as assistant teacher – Respondent board responded that not possible for applicant to continue in teaching position and regarded request as indicating applicant withdrew from negotiations relating to voluntary exit – Respondent board informed K that intended to proceed with disciplinary process – Applicant agreed to accept voluntary exit option and wrote letter of resignation – W informed K that respondent board willing to accept resignation and made no reference to contacting Police – Respondent informed K that applicant’s resignation accepted and stated had considered reporting matter to Police but would refrain from doing so – Applicant signed settlement agreement – Authority found B and D made no threat of Police involvement to applicant – Found while W alluded to possibility of Police involvement respondent had not intended it to be threat, nor was it considered as such by K – Found respondent did not threat to coerce applicant to accede to respondent’s will by tendering resignation as was K who initially made suggestion of voluntary exit and K who actively progressed option – Found K made suggestion of voluntary exit option prior to any mention of Police involvement – Found respondent did not obtain benefit through applicant’s resignation – Found settlement agreement not invalid due to blackmail – Found respondent acted as fair and reasonable employer – Found while there was pressure on applicant given serious nature of allegations was not of improper nature – Found applicant applied for alternative employment prior to receipt of email confirming resignation which indicated applicant intended to resign to avoid possibility of facing dismissal and possible deregistration rather than for any other consideration – Found applicant’s resignation not unlawfully obtained by duress and undue influence – Found settlement agreement valid – Deputy Principal |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Practice & Procedure |
| Statutes | ERA s103A;Crimes Act 1961 s237;Crimes Act 1961 s237(1)(a);Crimes Act 1961 s237(3) |
| Cases Cited | Pao On v Lau Yiu Long [1980] AC 614;Pharmacy Care Systems Ltd v Attorney-General (2004) 2 NZCCLR 187 |
| Number of Pages | 19 |
| PDF File Link: | 2012_NZERA_Auckland_28.pdf [pdf 96 KB] |