| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 298 |
| Hearing date | 18 May 2012 - 3 Jul 2012 (2 days) |
| Determination date | 31 August 2012 |
| Member | E Robinson |
| Representation | B Easton ; P Tremewan |
| Location | Auckland |
| Parties | Priest v Johnstons Coachlines Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably disadvantaged by respondent’s suspension of applicant and unjustifiably dismissed by respondent – Authority found applicant suspended without opportunity to have input into decision – Applicant unjustifiably disadvantaged by respondent’s suspension of applicant – Found respondent accepted medical certificate stating applicant unfit for Park’n’Ride duties and breach of duty to tell applicant to agree to variation of employment agreement or have employment terminated – Found respondent did not reasonably believe applicant resigned and applicant not paid or provided with work for around five months – Found respondent’s actions breach of duty causing applicant’s resignation – Found breaches sufficiently serious so as to make it reasonably foreseeable applicant would resign – Found applicant constructively dismissed – Dismissal unjustified – REMEDIES – 65 per cent contributory conduct – Respondent to pay applicant $7,530 reimbursement of lost wages for unjustified disadvantage and $4,761 reimbursement of lost wages for unjustified dismissal – Interest payable – $3,000 compensation appropriate for unjustified disadvantage and $2,800 compensation appropriate for unjustified dismissal – ARREARS OF WAGES – Applicant sought arrears of wages – Found applicant’s attitude in respect of respondent obtaining further medical information constituted refusal to undergo second medical opinion for purpose of employment agreement – Found no entitlement to serious illness leave – Found more likely than not respondent understood applicant requested reduced workload for first fortnight rather than first week following applicant’s return to work – No arrears of wages – Coach driver |
| Abstract | Applicant employed by respondent as coach driver. Applicant claimed unjustifiably disadvantaged by respondent’s suspension of applicant and unjustifiably dismissed by respondent. Applicant sought arrears of wages. Applicant on leave following diagnosis of serious depressive illness. Respondent’s managing director (“M”) asked to be involved in consultation with applicant’s doctor (“D”) to avoid respondent having to obtain second medical opinion. Applicant told M that D refused to become involved with respondent and D advised applicant not to allow further consultation with respondent. D denied being asked if respondent could contact D. Based on applicant’s response respondent claimed did not seek second medical opinion because understood applicant would not cooperate with request. Respondent claimed entitled to refuse applicant’s request for serious illness leave under employment agreement (“EA”) as applicant refused to cooperate with respondent about obtaining second medical opinion. Applicant claimed entitled to serious illness leave. Applicant claimed guaranteed pay for 80 hours per fortnight under EA but only paid for 65 hours in fortnight following applicant’s return to work. Applicant accepted asked to work limited hours but claimed only for first week rather than fortnight. On return to work applicant claimed Park’n’Ride duties stressful. After being told by respondent’s operations manager (“R”) that rostered on Park’n’Ride duties following day, applicant stated would take day off without pay. Applicant claimed told by R suspended on full pay. R denied saying applicant suspended. Respondent’s general manager warned applicant could face disciplinary action if failed to carry out duties and confirmed applicant not required to work until further notice. At meeting applicant claimed Park’n’Ride duties stressful and subsequently provided medical certificate. D issued certificate on assumption Park’n’Ride duties not part of applicant’s core duties. At further meeting applicant informed would need to agree to reduce minimum paid hours to 60 per fortnight while unfit for Park’n’Ride duties. Applicant refused to agree to variation and claimed prepared to carry out other duties for up to 80 hours per fortnight. At meeting four days later applicant and witness claimed applicant told to accept variation or be dismissed. Respondent denied telling applicant would be dismissed if did not sign variation. After meeting applicant handed in float and respondent claimed action indicated applicant’s resignation. Respondent stopped paying applicant and refused applicant’s requests to return to work. Applicant resigned. Applicant claimed constructively dismissed.;AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Applicant suspended without opportunity to have input into decision. Applicant unjustifiably disadvantaged by respondent’s suspension of applicant. Applicant’s EA did not specify applicant had to be available to perform all duties, including Park’n’Ride duties, for 80 hours per fortnight. Respondent accepted medical certificate stating applicant unfit for Park’n’Ride duties and telling applicant to agree to variation or have employment terminated breach of duty. Respondent did not reasonably believe applicant resigned given applicant’s requests to return to work and letter from respondent indicating respondent still considered applicant to be employee. Applicant not paid or provided with work for around five months. Respondent’s actions breach of duty causing applicant’s resignation. Breaches sufficiently serious so as to make it reasonably foreseeable applicant would resign. Applicant constructively dismissed. Dismissal unjustified. REMEDIES: 65 per cent contributory conduct. Respondent to pay applicant $7,530 reimbursement of lost wages for unjustified disadvantage and $4,761 reimbursement of lost wages for unjustified dismissal. Interest payable. $3,000 compensation appropriate for unjustified disadvantage and $2,800 compensation appropriate for unjustified dismissal.;ARREARS OF WAGES: Respondent asked to consult D in order to avoid necessity of obtaining second medical opinion and request declined by applicant. Applicant claimed untruthfully decision based on D’s advice. Reasonable for respondent to consider applicant would not cooperate with request for second medical opinion. Applicant’s attitude in respect of respondent obtaining further medical information refusal to undergo second medical opinion for purpose of EA. No entitlement to serious illness leave. More likely than not respondent understood applicant requested reduced workload for first fortnight rather than first week following applicant’s return to work. No arrears of wages. |
| Result | Applications granted (unjustified disadvantage)(unjustified dismissal); Contributory conduct (65%); Reimbursement of lost wages ($7,530.75)(unjustified disadvantage)($4,761.58)(unjustified dismissal); Interest (5%); Compensation for humiliation etc ($3,000)(unjustified disadvantage)($2,800)(unjustified dismissal); Application dismissed (arrears of wages); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A);ERA s103A;ERA s124;ERA s128(2);ERA Second Schedule cl11;Judicature Act 1908;Judicature (Prescribed Rate of Interest) Order 2011 |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers IUOW Inc [1994] 1 ERNZ 168; [1994] 2 NZLR 415;Sefo v Sealord Shellfish Ltd [2008] ERNZ 178;Tawhiwhirangi v Attorney-General in respect of Chief Executive, Department of Justice [1993] 2 ERNZ 546 |
| Number of Pages | 22 |
| PDF File Link: | 2012_NZERA_Auckland_298.pdf [pdf 305 KB] |