| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 123 |
| Hearing date | 15 Sep 2011 |
| Determination date | 21 June 2012 |
| Member | P Cheyne |
| Representation | D Kilpatrick, A Lysaght ; D Black |
| Parties | McClintock v Allied Investments Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably dismissed by respondent – Authority found applicant possibly had sense of unease about proposed restructure but respondent’s words and actions did not oblige or strongly tend to induce applicant to resign – No dismissal – PENALTY – Applicant sought penalty for respondent’s breach of contractual obligation to consult in redundancy setting – Found no breach of contractual obligation to consult by respondent as applicant resigned rather than be involved in consultation – No penalty – COUNTERCLAIM – RECOVERY OF MONIES – BREACH OF CONTRACT – Respondent sought recovery of costs of courses attended by applicant less than six months prior to applicant’s resignation – Respondent sought damages for applicant’s failure to account for missing radios and clothing – Found no arrangement for applicant to repay costs of courses occurring less than six months before applicant’s resignation – Found nothing to establish applicant liable for any loss of equipment – No recovery of monies – Area manager |
| Abstract | Applicant employed by respondent as area manager. Applicant claimed unjustifiably dismissed by respondent. Applicant sought penalty for respondent’s breach of contractual obligation to consult in redundancy setting. Following function for respondent’s clients, respondent’s manager (“M”) noticed no doorman on duty at client’s bar and ‘had a go’ at applicant. Applicant claimed noticed real change in way M and respondent’s general manager (“B”) acted towards applicant after incident. One month later applicant signed letter agreeing to changes to applicant’s work hours. Applicant claimed first heard about changes to work hours when applicant shown letter and only singed letter to keep job. Two months later respondent employed new hospitality manager. Applicant claimed received email next day telling applicant applicant’s position to be redundant and applicant’s only option was lower position. Respondent claimed drafted consultation document proposing redundancy but denied sending email. Next day applicant resigned. Applicant claimed constructively dismissed. Respondent sought recovery of costs of courses attended by applicant less than six months prior to applicant’s resignation. Respondent sought damages for applicant’s failure to account for missing radios and clothing.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Authority noted delay in issuing determination due to Christchurch earthquake. M had discussion with applicant about possible changes to applicant’s work hours before applicant presented with letter. Signed letter valid variation of applicant’s terms of employment. Applicant received document initiating consultation about restructuring. Applicant possibly had sense of unease about proposed restructure but respondent’s words and actions did not oblige or strongly tend to induce applicant to resign. No dismissal.;PENALTY: No breach of contractual obligation to consult by respondent as applicant resigned rather than be involved in consultation. No penalty.;COUNTERCLAIM – RECOVERY OF MONIES – BREACH OF CONTRACT: No arrangement for applicant to repay costs of courses occurring less than six months before applicant’s resignation. No evidence establishing loss of particular radios at particular venues and nothing to establish applicant obliged to account for radios to respondent. Applicant had attempted to recover jackets and nothing to establish applicant liable for any loss. Applicant never issued manager’s jacket. No sufficient proof applicant responsible for any loss of polo shirts. No recovery of monies. |
| Result | Applications dismissed; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1)(b);ERA s4(1A);Wages Protection Act 1983 |
| Cases Cited | Wellington etc Clerical Workers’ IUOW v Barraud and Abraham Ltd (1970) 13 MCD 93 |
| Number of Pages | 11 |
| PDF File Link: | 2012_NZERA_Christchurch_123.pdf [pdf 136 KB] |