| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 101 |
| Hearing date | 26 Aug 2011 |
| Determination date | 20 March 2012 |
| Member | K J Anderson |
| Representation | M Hammond, P Dawson ; E Burke |
| Location | Hamilton |
| Parties | Garvin v Progressive Equipment Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed unjustifiably dismissed by respondent – Respondent managing director (“S”) frustrated applicant not finished business plan and took leave with little notice – Applicant did not produce business plan months after returned from leave – S expressed concerns about applicant’s performance in letter to applicant – S requested applicant attend meeting with respondent directors – Applicant informed S that feeling unwell and had to leave work – S claimed applicant feigned illness in order to avoid addressing issues – S claimed asked applicant to leave cellphone with S so that applicant could focus on issues – Applicant claimed S had demanded cellphone and told would not need phone unless left premises with authorisation – Applicant attended disciplinary meeting – S claimed applicant agitated at meeting and refused to answer most questions – Applicant claimed calmly advised S that was not going to comment as needed more time to construct responses – Applicant claimed informed by S that situation was very serious and S needed to consider what next step would be – S informed applicant that would need to attend another meeting – S retained applicant’s laptop for backup purposes – Applicant claimed deprived by S of use of company car – S claimed told applicant not to use car to leave premises during the day but was free to use car to drive home – Applicant resigned – Authority found applicant not given adequate time to prepare complete response to all matters before disciplinary meeting – Found, however, unreasonable for applicant to adopt stance of not answering any questions in meeting as number of issues applicant should have been able to answer easily – Found applicant given enough time to prepare response for second meeting – Found requirement of S for applicant to attend meetings did not breach duty or term employment agreement – Found respondent made reasonably substantial investment in employing applicant and not foreseeable that actions regarding applicant’s performance would result in resignation – Found removal of applicant’s cellphone and laptop and reduced access to company car did not constitute breach of employment agreement – Found applicant not constructively dismissed and resignation voluntary – RECOVERY OF MONIES – Applicant requested that shares be fully paid up as required by employment agreement – Found applicant’s claim valid and entitlement became available as soon as practicable following execution of employment agreement – Leave reserved for parties to return to Authority if could not agree on value of shares owed to applicant – ARREARS OF WAGES – Applicant claimed respondent made unlawful deductions from applicant’s final pay – Found applicant’s claim not proven for want of probative evidence – Chief Executive Officer |
| Result | Application granted (recovery of monies) ; Recovery of monies (quantum to be determined) ; Applications dismissed (unjustified dismissal)(arrears of wages) ; Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers Industrial Union Of Workers (Inc) [1994] ERNZ 168;Donaldson & Youngman (t/a Law Courts Hotel) v Dickson [1994] ERNZ 920;New Zealand Woollen Workers IUOW v Distinctive Knitwear New Zealand Ltd [1990] 2 NZILR 438 |
| Number of Pages | 29 |
| PDF File Link: | 2012_NZERA_Auckland_101.pdf [pdf 146 KB] |