| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 20 |
| Hearing date | 16 Nov 2010 |
| Determination date | 10 February 2012 |
| Member | P Cheyne |
| Representation | J Goldstein ; A Schirnack |
| Location | Christchurch |
| Parties | Carpenter v Mondiale Freight Services Ltd |
| Summary | BREACH OF CONTRACT – Applicant sought damages for respondent’s failure to provide safe workplace – Applicant claimed told by respondent manager (“I”) that would not be required to work excessive hours – I denied making any commitment to applicant about hours of work – Authority found employment agreement consistent with I’s evidence – Applicant took over responsibility for export functions due to employee (“J”) taking parental leave – Found no written communication about arrangement between I and applicant – Found I knew arrangement would require applicant to work more than fulltime to cover responsibilities – Applicant visited doctor with complaints of feeling unwell due to being overworked by respondent – Applicant complained to I about excessive hours – I had discussion with applicant about handing some of applicant’s work over to another staff member – Applicant suggested I consider restructuring and streamlining some processes in order to address workloads – J informed I and applicant that unlikely would return to fulltime role due to excessive hours – Applicant raised unresolved workload matters with I – I raised matters at directors meeting and informed applicant of discussions – Applicant disappointed in delay, level of bonus and lack of salary review – I failed to respond to applicant’s concerns – J resigned – I informed applicant that individual would be employed to support applicant – Applicant resigned – Applicant claimed informed respondent of excessive workload and suffering health but respondent failed to take any action to support applicant, reduce workload or provide applicant with safe work environment – Found applicant suffered harm – Found applicant worked excessive hours and needed to do so in order to meet respondent’s requirements – Found volume and pressure of work significant cause of applicant’s illness – Found applicant took unequivocal steps to make concerns known to respondent – Found risk of harm to applicant from working long hours reasonably foreseeable – Found work expected of applicant breached employment agreement and therefore respondent failed to take all reasonably practicable steps to prevent harm to applicant – Found respondent’s response to applicant’s concerns characterised by delay and inaction – Found frustration experienced by applicant as result of delay and inaction contributed to applicant’s ill health and decision to resign – Found respondent breached obligation to maintain safe workplace – UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed unjustifiably dismissed by respondent – Applicant claimed combination of respondent’s inadequate or non-existent response to concerns and rapidly declining health meant had no other option but to resign – Found applicant’s communications with respondent did not indicate that resignation caused by something other than respondent’s breach of obligation – Found substantial risk of resignation reasonably foreseeable having regard to seriousness of breach – Respondent claimed applicant did not utilise procedures in employment agreement for resolving employment relationship problems – Found applicant had no obligation to seek assistance elsewhere instead of or before seeking advice from own doctor – Dismissal unjustified – REMEDIES – No contributory conduct – Respondent claimed applicant contributed to grievance by not disclosing prior illness or recurrence of illness, refusing counselling, and not taking assistance available from respondent – Found no blameworthy conduct on part of applicant – Found proven harm from employment relationship problems could not be distinguished and therefore could only make one award – Applicant claimed taken advantage of by I, stressed and saddened, and frustrated by loss of career and ambition – $15,000 compensation appropriate – Found applicant lost remuneration as result of grievance and suffered pecuniary loss as result of respondent’s breach of duty – Respondent claimed recovery should be limited to three months following termination of employment – Found difficulty with submission in that did not address principles of assessing losses under breach of contract claim and Authority may order compensation for more than initial three months under s128(3) Employment Relations Act 2000 – Operations Manager |
| Result | Applications granted ; Reimbursement of lost wages (quantum to be determined) ; Compensation for humiliation etc ($15,000) ; Costs reserved |
| Main Category | Breach of Contract |
| Statutes | ERA s65;ERA s113;ERA s128;Health and Safety in Employment Act 1992 s2;Health and Safety in Employment Act 1992 s2A(2);Health and Safety in Employment Act 1992 s6;Minimum Wage Act 1983 s11B |
| Cases Cited | Attorney-General v Gilbert [2002] 2 ERNZ 31;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] ACJ 963;Gilbert v Attorney-General [2000] ERNZ 332;Healey v Mercury Bay Area School Board of Trustees unreported, Shaw J, 11 May 2005, AC21/05;Whelan v Attorney-General [2004] 2 ERNZ 554 |
| Number of Pages | 26 |
| PDF File Link: | 2012_NZERA_Christchurch_20.pdf [pdf 137 KB] |