| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 108 |
| Hearing date | 7 Dec 2011 - 8 Dec 2011 (2 days) |
| Determination date | 31 May 2012 |
| Member | M B Loftus |
| Representation | P Butler ; L Inger |
| Location | Christchurch |
| Parties | Kennedy v Porse-In-Home Childcare (NZ) Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Applicant claimed unjustifiably disadvantaged by respondent’s failure to address applicant’s workload and unjustifiably dismissed by respondent – Authority found applicant unjustifiably disadvantaged by respondent’s failure to address applicant’s workload – Found respondent embarked on concerted course of action to procure applicant’s resignation – Found applicant’s resignation foreseeable and inevitable – Found applicant constructively dismissed – Dismissal unjustified – REMEDIES – No contributory conduct – Respondent to pay applicant $12,667 reimbursement of lost wages - $10,000 compensation appropriate - $4,620 reimbursement of paid parental leave benefit appropriate |
| Abstract | Applicant employed by respondent as client service administrator. Applicant claimed unjustifiably disadvantaged by respondent’s failure to address applicant’s workload and unjustifiably dismissed by respondent. Applicant raised workload issues and claimed stressed and frustrated. Respondent summoned applicant to meeting. Respondent told applicant another employee would perform applicant’s role and applicant to be offered new role on fixed term contract until applicant due to take maternity leave. Respondent claimed applicant’s position not in jeopardy and idea that applicant move to different role emerged during meeting. Applicant refused to accept fixed term contract. Applicant suspended. Applicant claimed asked to perform demeaning tasks on return to work. Applicant resigned. Applicant claimed constructively dismissed.;AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Authority noted delay in issuing determination due to Christchurch earthquake. Respondent failed to take action to address concerns raised by applicant. Applicant unjustifiably disadvantaged by respondent’s failure to address applicant’s workload. Respondent pre-determined decision to move applicant from current role. Respondent embarked on concerted course of action to procure applicant’s resignation. Respondent’s attempt to vary applicant’s terms of employment unilaterally and unilateral suspension of applicant may have amounted to breaches of duty capable of causing applicant to resign. Applicant’s resignation foreseeable and almost inevitable. Applicant constructively dismissed. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $12,667 reimbursement of lost wages. $10,000 compensation appropriate. $4,620 reimbursement of paid parental leave benefit appropriate. |
| Result | Applications granted; Reimbursement of lost wages ($12,667.67); Compensation for humiliation etc ($10,000); Compensation for loss of benefit (paid parental leave)($4,620); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s124;Parental Leave and Employment Protection Act 1987 s56(1)(b);Parental Leave and Employment Protection Act 1987 s56(1)(c) |
| Cases Cited | Auckland etc Shop Employees etc IUOW v Woolworths (NZ) Ltd (1985) ERNZ Sel Cas 136; [1985] 2 NZLR 372;B & D Doors Ltd v Hamilton (2008) 8 NZELC 99,258;McKendry v Jansen [2010] ERNZ 453;Wellington, Taranaki and Marlborough Clerical etc IUOW v Greenwich (t/a Greenwich and Associates Employment Agency and Complete Fitness Centre) (1983) ERNZ Sel Cas 95 |
| Number of Pages | 15 |
| PDF File Link: | 2012_NZERA_Christchurch_108.pdf [pdf 73 KB] |