| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 211 |
| Hearing date | 18 Apr 2012 |
| Determination date | 20 June 2012 |
| Member | R A Monaghan |
| Representation | R Hemara ; S Woodhouse |
| Parties | Hemara v Director General Department of Conservation |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably disadvantaged by respondent’s failure to offer applicant work and attempt to reduce applicant’s work hours – Applicant claimed unjustifiably dismissed by respondent – Authority found applicant permanent employee and suspended by respondent’s failure to offer applicant work – Found respondent did not attempt to reduce applicant’s work hours – Applicant unjustifiably disadvantaged by respondent’s failure to offer applicant work – Found respondent’s failure to pay applicant during suspension and attempt to alter terms of applicant’s employment unilaterally breach of duty – Found applicant constructively dismissed – Dismissal unjustified – REMEDIES – No contributory conduct – Respondent to pay applicant reimbursement of lost wages for unjustified disadvantage, parties to determine quantum - $3,000 compensation appropriate for unjustified disadvantage and unjustified dismissal – Cleaner |
| Abstract | Applicant employed by respondent as cleaner. Applicant claimed unjustifiably disadvantaged by respondent’s failure to offer applicant work and attempt to reduce applicant’s work hours. Applicant claimed unjustifiably dismissed by respondent. Applicant cleaned respondent’s office weekly. Respondent made aware of violent incident between applicant and applicant’s husband (“H”) and that applicant in police custody. H also employee of respondent. Respondent claimed applicant casual employee and decided not to offer applicant work until information about incident obtained and need for workplace safety measures assessed. Three months later applicant told by respondent applicant’s work to be carried out during working hours under supervision. Five months later applicant returned to work. Respondent considered applicant unreliable and instructed applicant to work during specified times. Applicant resigned. Applicant claimed constructively dismissed.;AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Applicant employed to clean respondent’s office on on-going weekly basis. Applicant permanent employee. Respondent did not attempt to reduce applicant’s work hours. Applicant suspended by respondent’s failure to make work available to applicant. Suspension unpaid and in breach of employment agreement (“EA”). Applicant unjustifiably disadvantaged by respondent’s failure to offer applicant work. Respondent did not engage in course of conduct designed to coerce applicant’s resignation. Respondent’s attempt to alter applicant’s terms of employment unilaterally and refusal to pay applicant during applicant’s suspension breach of EA. Respondent entitled to seek information about domestic dispute to address effect on workplace and to impose closer supervision on applicant, but not entitled to do so unilaterally. Applicant’s resignation caused by respondent’s breach of duty and risk of resignation substantial and reasonably foreseeable. Applicant dismissed. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant reimbursement of lost wages for unjustified disadvantage, parties to determine quantum. $3,000 compensation appropriate for unjustified disadvantage and unjustified dismissal. |
| Result | Applications granted; Reimbursement of lost wages (parties to determine quantum)(unjustified disadvantage); Compensation for humiliation etc ($3,000) (unjustified disadvantage and unjustified dismissal); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers IUOW Inc [1994] 1 ERNZ 168; [1994] 2 NZLR 415;Hemara v Department of Conservation unreported, NZTT Te Kuiti, 17 March 2011, 11/00123/HN;Jinkinson v Oceana Gold (NZ) Ltd [2009] ERNZ 225;Lee v Minor Developments Ltd t/a Before Six Childcare Centre unreported, Shaw J, 23 December 2008, AC52/08 |
| Number of Pages | 17 |
| PDF File Link: | 2012_NZERA_Auckland_211.pdf [pdf 165 KB] |