| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 183 |
| Hearing date | 23 May 2012 |
| Determination date | 29 August 2012 |
| Member | M B Loftus |
| Representation | J Levenbach ; P Elder |
| Location | Nelson |
| Parties | Richards v Mainline Music Ltd t/a Music Planet, Nelson |
| Summary | UNJUSTIFIED DISMISSAL – Constructive Dismissal - Applicant claimed unjustifiably dismissed by respondent – Authority found respondent manager’s (“K”) behaviour relating to applicant reaching sales targets and K’s advice applicant’s job temporary did not amount to repudiatory conduct – Found K had understandable commercial interest in applicant’s goods on auction site and purchased two items – Found, viewed on own, K accusing applicant of not doing any work did not alone amount to repudiatory conduct and evidence suggested applicant’s conduct contributed to incident - No dismissal – PENALTY - Applicant sought penalty for respondent’s failure to provide written employment agreement (“EA”) – Found respondent’s failure to provide applicant with written EA understandable oversight as respondent director offered applicant employment as friend - Penalty not appropriate in circumstances - No penalty - Shop Assistant |
| Abstract | Applicant employed as shop assistant. Applicant claimed unjustifiably dismissed by respondent and sought penalty for respondent’s failure to provide written employment agreement (“EA”). Applicant previously owned music shop (“X”) but closed X due to financial difficulties. Respondent director (“S”) considered applicant friend and offered applicant position at respondent. Applicant claimed respondent manager (“K”) acted in manner to force applicant’s resignation. Applicant claimed K raised concerns about applicant’s performance and told applicant was “plodder” and K did not want applicant in respondent store. Respondent denied told applicant did not want applicant in store or issued applicant with warning. Respondent began review as trading difficult and restructure pending. Applicant claimed respondent told applicant and another employee (“B”) jobs were temporary and unlikely to be employed after three month trial period expired. Applicant claimed increasing tension when applicant addressed business relating to closing X and respondent tried to procure resignation by embarrassing applicant. Applicant claimed K made it difficult for applicant to achieve sales targets. Applicant claimed did not respond to K’s instruction immediately as watching customers for security reasons and K swore at applicant and accused applicant of not doing any work all week. Applicant left store and called S who told applicant to have day off. Applicant told respondent would take two weeks’ leave before considering options. Applicant claimed K had made it clear did not want applicant at respondent’s store and applicant did not return to employment. B claimed K just setting sales targets and did not act inappropriately towards applicant. B claimed appeared applicant wanted to evade work as much as possible. Applicant claimed K monitoring applicant’s sale of X property on auction site.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Respondent entitled to set sales targets especially in trying financial conditions and make decisions about store business operation. K’s behaviour relating to applicant reaching sales targets did not amount to repudiatory conduct. Applicant might have found K’s advice jobs were temporary annoying but did not amount to repudiatory conduct. K had understandable commercial interest in applicant’s goods on auction site and purchased two items. Viewed on own, K accusing applicant of not doing any work did not alone amount to repudiatory conduct and evidence suggested applicant’s conduct contributed to incident. No dismissal.;PENALTY: Respondent’s failure to provide applicant with written EA understandable oversight as S offered applicant employment as friend. Penalty not appropriate in circumstances. No penalty. |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s65 |
| Cases Cited | Auckland Shop Employees IUOW v Woolworths (NZ) Ltd (1985) ERNZ Sel Cas 136 ; 2 NZLR 372;Wellington, Taranaki and Marlborough Clerical IUOW v Greenwich (t/a Greenwich and Associates Employment Agency) (1983) ERNZ Sel Cas 95 |
| Number of Pages | 9 |
| PDF File Link: | 2012_NZERA_Christchurch_183.pdf [pdf 172 KB] |