| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 139 |
| Hearing date | 15 Nov 2011 |
| Determination date | 20 April 2012 |
| Member | K J Anderson |
| Representation | M Van der Heijden ; G Stone |
| Location | Auckland |
| Parties | Van der Heijden v Trelise Cooper International Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Constructive Dismissal – UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably disadvantaged by unilateral reduction of hours – Applicant claimed unjustifiably dismissed by respondent - Applicant’s hours reduced – Respondent claimed applicant less reliable and harder to contact after refused pay rise – Respondent’s concerns not discussed with applicant – Five days later respondent informed applicant reduced sales meant hours of part time staff reduced – Respondent told applicant no guaranteed hours for part time staff – Respondent invited applicant to discuss situation but applicant declined – Month later respondent told applicant no hours available for applicant to work in coming week – Applicant resigned – Respondent claimed applicant casual employee – Authority found established pattern of days and hours worked by applicant – Found applicant’s employment sufficiently regular and continuous for applicant to be permanent part time employee – Found applicant’s relative youth and inexperience meant obligation on respondent to consult applicant about proposed reduction in hours – Found fair and reasonable employer would not unilaterally reduce applicant’s hours – Found applicant unjustifiably disadvantaged by respondent’s actions – Found applicant’s resignation caused by fundamental breach of respondent’s duty to consult applicant prior to reduction in hours – Found foreseeable to respondent that applicant might conclude respondent no longer going to provide applicant reasonable income and not willing to continue working – Found applicant constructively dismissed – Dismissal unjustified – REMEDIES – Found applicant less reliable after pay rise refused – Found applicant should have discussed reduced hours – 30 per cent contributory conduct - $3,003 reimbursement of lost wages - $4,200 compensation appropriate – Retail sales assistant |
| Result | Applications granted; Contributory conduct (30%); Reimbursement of lost wages ($3,003); Compensation for humiliation etc ($4,200); Disbursements in favour of applicant ($71.56)(filing fee); No order for costs |
| Main Category | Personal Grievance |
| Statutes | ERA s103(1)(a);ERA s103(1)(b);ERA s103A;ERA s124;ERA s128(2);ERA s128(3) |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers IUOW Inc [1994] 1 ERNZ 168; [1994] 2 NZLR 415;Jinkinson v Oceana Gold (NZ) Ltd [2009] ERNZ 225;Rush Security Services Ltd t/a Darien Rush Security v Samoa [2011] NZEmpC 76 |
| Number of Pages | 13 |
| PDF File Link: | 2012_NZERA_Auckland_139.pdf [pdf 67 KB] |