| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 286 |
| Hearing date | 25 Apr 2011 |
| Determination date | 23 August 2012 |
| Member | E Robinson |
| Representation | G Finnigan ; J Foden |
| Parties | Thompson v Advanced Training Academy Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably disadvantaged by respondent’s actions and unjustifiably dismissed by respondent – Authority found respondent’s managing director’s (“H”) failure to involve applicant in recruitment of new programme manager (“J”) not attributable to any intention to purposefully exclude applicant from process – Found no evidence respondent intended J to displace applicant or J tried to usurp applicant’s position – Found applicant’s suspicions of ulterior motives behind J’s appointment coloured applicant’s perception of events – Found applicant actively seeking other employment eight months prior to resignation – Found no breach of duty by respondent – Found applicant did not notify respondent prior to resignation regarded H as having acted in such a way as amounting to serious breach of duty – Found substantial risk of resignation not reasonably foreseeable – No dismissal – No unjustified disadvantage – ARREARS OF WAGES – Applicant sought arrears of wages – Found employment agreement required any variation to be in writing and no evidence of written agreement to vary contractual terms relating to commission payment in specified year – Found applicant entitled to commission payment on profit made above specified amount in specified year – Respondent to pay applicant $1,949 arrears of wages – Operations manager |
| Abstract | Applicant employed by respondent as operations manager. Applicant claimed unjustifiably disadvantaged by respondent’s actions and unjustifiably dismissed by respondent. Applicant sought arrears of wages. After resignation of programme manager, respondent’s managing director (“H”) decided to appoint former chief executive officer (“J”) to position but did not inform applicant of J’s appointment until J accepted position. Applicant claimed decision to appoint J without consultation undermined applicant’s role. J agreed to undertake position on temporary basis until audit completed. Applicant accepted told by J that J would not be at respondent for long. J claimed position description provided by applicant contained operational matters falling under applicant’s role. H claimed asked applicant and J to resolve issues and advised that should examine both position descriptions together. Applicant claimed humiliating to be asked to provide position description to J. Applicant claimed during video conference between applicant, J and H about role responsibilities, operational matters not part of J’s role discussed and J’s involvement in discussion indicative of H’s and J’s intention to undermine applicant. J e-mailed H, criticised applicant and suggested employees be given pay rise. H replied stating needed to see how applicant would react to changes J making and restructuring an option. Applicant claimed e-mails showed J ‘side-lining’ applicant. Applicant claimed J moved to office larger and more opulent than applicant’s and move signalled to other employees applicant relegated to secondary role. Applicant claimed heard J talking in Farsi in J’s office and assumed J going over applicant’s head by speaking to H. Applicant claimed had exclusive cheque signing authority along with fellow employee but after J’s appointment applicant told J also to have cheque signing authority. Respondent claimed J given cheque signing authority in response to applicant exceeding authority when purchasing new company car and planning to sign long term contract for iPhone for applicant’s personal use to be paid for by respondent. Applicant resigned. Applicant claimed constructively dismissed. Respondent claimed applicant told other employees after tendering resignation applicant had new job. Applicant claimed comments about new job designed to maintain applicant’s self-esteem. Applicant claimed entitled under employment agreement (“EA”) to commission payment for profit over specified amount in specified year. Respondent claimed verbal agreement that applicant not entitled to commission payment in specified year as applicant employed during year after funding contracts finalised.;AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Respondent required to fill programme manager vacancy urgently and H’s failure to involve applicant in recruitment process not attributable to any intention to purposefully exclude applicant from process. Appointment of J within H’s authority and not dismissive or repudiatory conduct. No evidence respondent intended J to displace applicant. Applicant could have clarified nature of J’s employment and have fixed term nature of role reflected in J’s EA. No evidence J tried to usurp applicant’s position as J indicated did not want any involvement in operational matters. Applicant objected to J’s presence in discussion about operational matters despite fact discussion in J’s office and facilitated by J because applicant unable to use technology. J’s e-mail to H scathing of applicant’s performance but unclear when applicant became aware of e-mail or whether e-mail influenced applicant’s decision to resign. Applicant’s belief J conversing with H from J’s new office only an assumption as applicant did not understand Farsi. Conversations could not have influenced applicant’s decision to resign as J did not move offices until after applicant’s resignation. J’s inclusion as cheque co-signatory prompted by applicant exceeding purchasing authority. Need for J to move office prompted by applicant’s suggestion J’s office be used by tutor. Applicant actively seeking other employment eight months prior to resignation. No breach of duty by respondent. Applicant did not notify respondent prior to resignation regarded H as having acted in such a way as amounting to serious breach of duty. Substantial risk of resignation not reasonably foreseeable. No dismissal. No unjustified disadvantage.;ARREARS OF WAGES: EA required any variation to be in writing and no evidence of written agreement to vary contractual terms relating to commission payment in specified year. Applicant entitled to commission payment on profit made above specified amount in specified year. Respondent to pay applicant $1,949 arrears of wages. |
| Result | Application granted (arrears of wages); Arrears of wages ($1,949.60); Applications dismissed (unjustified dismissal)(unjustified disadvantage); Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers IUOW Inc [1994] 1 ERNZ 168; [1994] 2 NZLR 415;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 | 25 |
| PDF File Link: | 2012_NZERA_Auckland_286.pdf [pdf 343 KB] |