| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 91 |
| Determination date | 16 May 2012 |
| Member | P Cheyne |
| Representation | G Downing ; J Levenbach |
| Parties | Chalmers v Physical Therapy Nelson Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably dismissed by respondent – Authority found respondent’s failure to honour sponsorship agreement breach of duty – Found respondent’s placement of applicant on unpaid leave on applicant’s return significant breach of duty – Found respondent raised new allegations after applicant answered existing ones – Found applicant constructively dismissed – Dismissal unjustified – REMEDIES – No contributory conduct – Respondent to pay applicant $14,755 reimbursement of lost wages - $10,000 compensation appropriate – ARREARS OF WAGES – Applicant sought arrears of wages – Found applicant entitled to be paid under sponsorship agreement and during period applicant placed on unpaid leave – Respondent to pay applicant $4,375 arrears of wages – Interest payable – PENALTY – Applicant sought penalty for respondent’s failure to pay wages on time – Found respondent’s failure redressed by order for interest – No penalty – COUNTERCLAIM – BREACH OF CONTRACT – PENALTY – Respondent sought damages and penalty for applicant’s alleged attempted theft of respondent’s intellectual property – Found respondent suffered no loss – Found unable to find applicant attempted to take respondent’s property – No penalty – COUNTERCLAIM – RESTRAINT OF TRADE – Respondent claimed damages for breach of restraint of trade (“ROT”) provisions by applicant – Found no breach of ROT – Physiotherapist |
| Abstract | Applicant employed by respondent as physiotherapist. Applicant claimed unjustifiably dismissed by respondent. Applicant sought arrears of wages and penalty for respondent’s failure to pay wages when due. Applicant employed by business before ownership of business transferred to respondent. Applicant selected to attend Boxing World Championships. Applicant claimed parties agreed applicant would be given paid leave for entire tournament as sponsorship. Respondent claimed only agreed to pay extra leave if applicant met billable hours target. Respondent decided not to honour sponsorship agreement and called meeting with applicant night before applicant departed for world championships. Respondent claimed applicant’s husband (“A”) stated prior to meeting that applicant would ‘bad mouth’ respondent to respondent’s clients if applicant upset during meeting. Respondent claimed A stated applicant suffered breakdown previous weekend. Applicant not told of respondent’s decision not to honour sponsorship agreement until applicant at world championships. Applicant asked to attend meeting on applicant’s return to discuss allegations of serious misconduct including alleged threat that applicant would ‘bad mouth’ respondent. Respondent sought advice on belief applicant suffered mental breakdown. Respondent informed applicant of view applicant’s emotional conduct prior to leaving New Zealand possibly caused by use of prohibited substances. Respondent asked applicant to provide confirmation from applicant’s doctor prior to applicant’s return to work that applicant had not used prohibited substances in previous six months and that mental health issues resolved. Applicant unaware of request and sent away after reporting for work. Respondent refused to clarify applicant’s employment status and applicant reported for work each morning. Respondent stated applicant on leave without pay and claimed applicant harassing respondent’s staff. Applicant warned could be dismissed if applicant contacted respondent’s staff before matter resolved. Following further correspondence applicant resigned. Applicant claimed constructively dismissed. Respondent claimed applicant asked former colleague to copy information onto memory stick. Respondent sought damages and penalty for applicant’s alleged attempted theft of respondent’s intellectual property. Respondent sought damages for breach of restraint of trade (“ROT”) provisions in employment agreement.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Authority ordered non-publication of respondent’s financial information and temporary non-publication of certain evidence. Sponsorship agreement not conditional on applicant achieving billable hours target. Respondent’s failure to honour sponsorship agreement breach of duty. Respondent’s placement of applicant on unpaid leave following applicant’s return significant breach of duty. Applicant unaware of any threat made by A that applicant would ‘bad mouth’ respondent. A told respondent applicant suffered breakdown rather than mental breakdown and allegation about applicant’s use of prohibited substances flimsy at best. Applicant did not harass staff and applicant’s warning for harassing staff breach of duty. Applicant resigned because respondent raised fresh matters without progressing arrangements for a meeting after applicant answered existing allegations. Applicant entitled to conclude respondent not acting in good faith. Foreseeable risk that respondent’s breaches of duty may cause applicant to resign. Applicant constructively dismissed. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $14,755 reimbursement of lost wages. $10,000 compensation appropriate.;ARREARS OF WAGES: Applicant entitled to be paid during absence under sponsorship agreement and during period applicant on unpaid leave following return. Respondent to pay applicant $4,375 arrears of wages. Interest payable.;PENALTY: Respondent’s failure to pay arrears of wages at correct time redressed by order for interest. No penalty.;COUNTERCLAIM – BREACH OF CONTRACT – PENALTY: No loss suffered by respondent. Unable to find that applicant attempted to take respondent’s property. No penalty.;COUNTERCLAIM – RESTRAINT OF TRADE: First ROT provision applied for six months after termination of ‘current contract’. Contract ended when ownership of business transferred to respondent. ROT expired. Second ROT provision ambiguous. No breach of ROT. |
| Result | Applications granted (unjustified dismissal)(arrears of wages); Reimbursement of lost wages ($14,755.02); Compensation for humiliation etc ($10,000); Arrears of wages ($4,375); Interest payable (5%); Applications dismissed (penalty)(counterclaim)(breach of contract – penalty)(restraint of trade); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s124;ERA s128;ERA s128(2);ERA s128(3);ERA s131;ERA s160(3);ERA s161(2)(b);Health Practitioners Competence Assurance Act 2003 s45;Health Practitioners Competence Assurance Act 2003 s46;Illegal Contracts Act 1970 |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers IUOW Inc [1994] 1 ERNZ 168; [1994] 2 NZLR 415;Auckland etc Shop Employees etc IUOW v Woolworths (NZ) Ltd (1985) ERNZ Sel Cas 136; [1985] 2 NZLR 372 |
| Number of Pages | 36 |
| PDF File Link: | 2012_NZERA_Christchurch_91.pdf [pdf 300 KB] |