| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2012] NZERA Wellington 103 |
| Hearing date | 21 Jun 2012 |
| Determination date | 14 September 2012 |
| Member | P R Stapp |
| Representation | D McLeod ; D Robb |
| Location | Napier |
| Parties | Johnston v The Silky Oak Chocolate Company Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed constructively dismissed by respondent – Applicant refused to clean workplace microwave after microwave had been used by applicant’s colleagues - Authority found applicant mentioned leaving and working out notice at meeting to discuss matter therefore respondent entitled to ask for applicant’s resignation in writing – Found events not serious enough to cause applicant to “quit” and then claim employment had ceased at respondents’ initiative – Found no evidence respondent attempted to coerce applicant into resigning – Found no breach serious enough that reasonably foreseeable applicant would resign - Applicant not constructively dismissed – No dismissal - Shop Assistant |
| Abstract | Applicant employed as shop assistant. Applicant claimed constructively dismissed by respondent. Applicant refused to clean workplace microwave after microwave had been used by applicant’s colleagues. Parties disputed whether respondent manager (“D”), after applicant refused to clean microwave, threw pad and pen at applicant and demanded applicant’s resignation. Applicant wrote “I quit” on pad and did not return to workplace. Respondent requested applicant reconsider resignation and placed applicant on notice of disciplinary action because of applicant’s behaviour. Respondent claimed applicant left voluntarily after respondent asked applicant why refused to follow lawful instruction to clean microwave. D met with applicant several times to discuss why applicant not cleaning microwave. D claimed at meetings attempted to understand why applicant had decided not to clean microwave as cleaning part of applicant’s duties. Parties disputed whether applicant told D was “drawing line in sand” about cleaning up after colleagues. Applicant accepted was wrong to refuse to clean microwave and told D would accept written warning. Applicant claimed respondent demanded applicant resign in writing and was pressured to leave respondent.;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Parties’ meetings informal and could not be viewed as excessive. Applicant became upset at meeting and told D was “drawing line in sand.” Applicant mentioned leaving and working out notice at meeting to discuss matter therefore respondent entitled to ask for applicant’s resignation in writing. Authority noted in best practice for respondent to allow ‘cooling down period’ in circumstances. Respondent’s response may have been inflammatory and overly procedural but not foreseeable applicant would resign. Respondent’s reaction occurred after applicant had left employment. More likely than not parties could not reach understanding about matter because of charged atmosphere at meeting and applicant’s decision to go home. Events not serious enough to cause applicant to “quit” and then claim employment had ceased at respondent’s initiative. Not enough evidence to prove D demanded applicant put resignation in writing. No evidence respondent attempted to coerce applicant into resigning. No breach serious enough that reasonably foreseeable applicant would resign. Applicant not constructively dismissed. No dismissal. |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Number of Pages | 8 |
| PDF File Link: | 2012_NZERA_Wellington_103.pdf [pdf 209 KB] |