| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 47 |
| Hearing date | 14 Nov 2011 - 2 Dec 2011 (4 days) |
| Determination date | 03 February 2012 |
| Member | R Larmer |
| Representation | W Reid ; D Patten |
| Location | Tauranga |
| Parties | Spake v Vehicle Testing New Zealand Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed applicant abandoned employment – Applicant claimed frightened of respondent station manager (“J”) – Applicant claimed J touched ponytail and top of back – J claimed only tugged on or flicked applicant’s hair with finger in fun – Authority preferred applicant’s evidence – Respondent area manager (“M”) told J that behaviour inappropriate and not to do it again – J initiated discussion about touching incident with applicant – J claimed raised matter with applicant in order to apologise – M and respondent senior human resources consultant (“A”) considered it reasonable for J to initiate discussion with applicant – Applicant claimed felt uncomfortable by manner of discussion – Applicant claimed J made gesture towards applicant’s breasts – Found inappropriate for J to raise incident in such manner – Found applicant genuinely distressed by discussion – Applicant claimed J made offensive comments about applicant dressing up for hen party and getting “udders out” – J claimed comments were made about poster and intended as joke – Found more likely than not J’s comments were directed at applicant and udders was reference to applicant’s breasts – Found applicant very distressed by J’s comments – Applicant sent written complaint to M referencing J’s udders comment and gesture towards applicant’s breasts – Applicant visited doctor who found applicant unfit for work for two weeks – Applicant attended medical examination with respondent’s nominated medical practitioner (“P”) after request from respondent to provide further medical information – P confirmed applicant unfit for work for two weeks – Applicant raised new concerns about J’s conduct at meeting with M and A which included allegations that J made adverse comments about other staff members, claimed to have been employed to get rid of on-road staff, purchased Ms Hollis morning tea or chocolates and asked applicant to “boss” particular employee – Respondent investigated applicant’s other complaints and concluded J had been having inappropriate conversations with applicant around closing time – Respondent did not accept applicant’s complaints about J’s udders comments and breasts gesture – A and M claimed applicant not entitled to become upset about innuendo from J as had previously accepted comment by colleague which involved innuendo – A and M did not accept J’s udders comment was inappropriate – Found A improperly allowed adverse view of applicant to colour perception and investigation of applicant’s complaints – M claimed focus group meeting would satisfactorily resolve any outstanding issues applicant had with J – Found M fundamentally misunderstood purpose of focus group meeting – Applicant claimed pressured to return to work and only did so because was exhausted and wanted meeting to end – Found applicant unfairly pressured to return to work – Found respondent failed to show any sensitivity or understanding about applicant’s poor health – Found unreasonable for respondent to expect applicant to return to work under J before two most serious allegations had been properly addressed – Respondent admitted had overlooked applicant’s complaint about J’s alleged breast gesture – Found respondent failed to reach conclusion on udders complaint because did not approach matter with open mind and did not properly consider circumstances in which comment was made – Found respondent had evidence which should have enabled conclusion that J’s comment and circumstances in which it was made were inappropriate – Applicant claimed informed respondent that would be away for whole day due to hospital appointment – Found parties agreed that applicant would not be at work for whole day – A claimed because applicant’s complaints had been swiftly resolved applicant should have been well enough to return to work immediately – Found unreasonable for respondent to conclude applicant’s health problems would have immediately disappeared just because respondent considered complaints had been resolved – Applicant decided not to return to work – M informed applicant that respondent would not accept applicant taking more time off work regarding complaints against F and if did not return to work immediately applicant’s employment would be terminated – Respondent terminated applicant’s employment once applicant failed to return to work – Respondent claimed applicant abandoned employment – Found M’s letter to applicant did not refer to abandonment and made reference to termination which was consistent with applicant’s employment ending on grounds of abandonment – Found inability of respondent to sustain applicant’s ongoing absence was incapacity issue – Found respondent’s actions inconsistent with genuine resignation situation – Found applicant did not abandon employment – Found applicant dismissed – Found respondent did not have good reason for dismissing applicant and did not follow fair and proper procedure before doing so – Found number of actions by respondent which led to applicant’s resignation and combination of actions sufficiently met standard of causation required – Dismissal unjustified – REMEDIES – 30 per cent contributory conduct – Found applicant’s failure to actively or constructively communicate with M was blameworthy conduct which contributed to grievance – Found more likely than not applicant’s dismissal was cause of or significant contribution to applicant’s inability to work – Found applicant required medical attention, ongoing medication and counselling as result of dismissal – Applicant claimed was devastated by dismissal and financial impact was enormous – $15,000 compensation appropriate – 12 months reimbursement of lost wages appropriate – Customer Service Representative |
| Result | Application granted ; Contributory conduct (30%) ; Reimbursement of lost wages (12 months reduced by 30%) ; Compensation for humiliation etc ($15,000 reduced to $10,500) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s4(1A);ERA s4(1A)(b);ERA s124 |
| Cases Cited | Adams Sawmilling Co Ltd v Patrick (1995) 4 NZELC 98,332;Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers Industrial Union Of Workers (Inc) [1994] ERNZ 168;Auckland Shop Employees IUOW v Woolworths (NZ) Ltd [1985] 2 NZLR 372;Lwin v A Honest International Co Ltd [2003] ERNZ 387;Pitolua v Auckland City Council Municipal Abattoir [1992] ERNZ 693 |
| Number of Pages | 40 |
| PDF File Link: | 2012_NZERA_Auckland_47.pdf [pdf 178 KB] |