| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 223 |
| Hearing date | 13 Jun 2012 - 15 Jun 2012 (3 days) |
| Determination date | 17 October 2012 |
| Member | D Appleton |
| Representation | P O'Sullivan ; MJ Thomas |
| Location | Invercargill |
| Parties | Pivott & Anor v Southern Adult Literacy Inc |
| Other Parties | O'Sullivan |
| Summary | RAISING PERSONAL GRIEVANCE – Whether second applicant’s grievances raised within 90 days – Authority found second applicant’s memorandum to related organisation not sent to respondent – Found second applicant’s grievance respondent deliberately withheld teaching opportunities not raised within 90 days – Found no requirement for second applicant to state expressly in resignation letter raising personal grievance – Found second applicant gave respondent ample opportunity to address concerns about being labelled health and safety hazard – Found second applicant’s grievance unjustifiably dismissed raised within 90 days – UNJUSTIFIED DISADVANTAGE – BARGAINING – Applicants claimed unjustifiably disadvantaged by respondent’s actions – Found no undermining of first applicant’s position – Found pressure on first applicant to sign new employment agreement (“EA”) not improper and respondent considered and responded to issues raised by first applicant – Found first applicant had legitimate expectation of attending huis – First applicant unjustifiably disadvantaged by respondent’s failure to consult first applicant before forbidding first applicant from attending national hui – Found first applicant did not have right to attend respondent’s Committee (“Committee”) meetings but Committee should not have refused to countenance possibility of first applicant having contact with Committee without asking why access desired or providing reasons for refusal – First applicant unjustifiably disadvantaged by respondent’s failure to communicate clearly with first applicant over request for access to Committee – Found no evidence respondent met second applicant in good faith to explain why conduct regarded as health and safety risk or give second applicant opportunity to address concerns – Second applicant unjustifiably disadvantaged by respondent’s handling of allegation second applicant health and safety risk – UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicants claimed unjustifiably dismissed by respondent – Found failure to consult first applicant about decision not to allow first applicant to attend national hui and refusal to allow first applicant to communicate with Committee directly not serious enough breaches to constitute repudiation of first applicant’s EA – Found no dismissal of first applicant – Found foreseeable employee in teaching capacity accused of displaying behaviour amounting to health and safety risk but not afforded chance to defend themselves likely to resign – Found manager’s decision not to give second applicant further teaching opportunities without giving second applicant opportunity to address concerns fundamental breach of duty of good faith – Found second applicant constructively dismissed – Dismissal unjustified – REMEDIES – No contributory conduct (first applicant) – 50 per cent contributory conduct (second applicant) – $7,500 compensation appropriate for first applicant – $2,500 compensation appropriate for second applicant – Workplace coordinator and tutor |
| Abstract | First applicant employed by respondent as workplace coordinator. Second applicant employed by respondent as tutor. Applicants claimed unjustifiably disadvantaged by respondent’s actions and unjustifiably dismissed by respondent. Respondent claimed second applicant’s grievances teaching opportunities withheld deliberately and constructively dismissed not raised within 90 days. First applicant claimed manager (“G”) attempted to undermine first applicant’s position through various actions. First applicant claimed role eroded significantly by proposed changes to job description and only signed new employment agreement (“EA”) under duress, without reasonable opportunity to seek independent advice and after respondent failed to consider and respond to issues raised by first applicant. First applicant claimed new fixed term EA should have been for one year term. First applicant claimed stopped from attending huis when attendance required under first applicant’s EA. First applicant claimed only coordinator not allowed to talk to respondent’s Committee (“Committee”) directly or attend Committee meetings but required under EA to attend scheduled Committee meetings and provide monthly report to Committee. First applicant resigned. First applicant claimed constructively dismissed. Following second applicant’s conduct at Committee meeting and series of strongly worded e-mails sent by second applicant, Committee’s new chairperson characterised second applicant’s harassing or bullying behaviour as health and safety hazard. Second applicant attempted over following months to engage with G and Committee to clear second applicant’s name and sent memorandum to related organisation complaining G resisted second applicant’s further involvement in tutoring opportunities. Respondent refused to attend mediation. Second applicant resigned and claimed resignation letter raised constructive dismissal personal grievance.;AUTHORITY FOUND –;RAISING PERSONAL GRIEVANCE: Authority ordered non-publication of identity of third party. Second applicant’s memorandum to related organisation not sent to respondent. No reference in subsequent correspondence to G not giving second applicant further work. Second applicant’s grievance respondent deliberately withheld teaching opportunities not raised within 90 days. No requirement for second applicant to state expressly in resignation letter raising personal grievance. Second applicant’s constructive dismissal grievance made sufficiently clear. Second applicant gave respondent ample opportunity to address concerns about being labelled health and safety hazard. Second applicant’s statement would pursue claims from vantage of membership of respondent not material as second applicant made clear had personal grievance for respondent to address. Second applicant’s grievance unjustifiably dismissed raised within 90 days.;UNJUSTIFIED DISADVANTAGE – BARGAINING: No requirement for G to consult first applicant before putting proposal to Committee for reduction of first applicant’s hours. Any reduction of workplace funding account not aimed at undermining first applicant. Reasonable for first applicant to be removed as cheque signatory when no longer member of Committee. G entitled to ask first applicant about relationship between applicants and obligated to ask first applicant about apparent breach of confidentiality when issue raised by Committee. Delay in giving first applicant new employment documents not deliberate and no material prejudice to first applicant being appraised. No evidence respondent responsible for first applicant’s missing cell phone. First applicant unable to attend course as only one place available and G required to attend. First applicant never complained about being locked out of office filing cabinet. Information not withheld deliberately from first applicant. No cogent evidence first applicant victim of concerted and on-going series of acts of distorted or exaggerated gossip. No undermining of first applicant’s position. First applicant knew effect of signing new EA. Pressure on first applicant to sign EA not improper and first applicant’s will not overborne. No evidence first applicant given very short period within which to seek legal advice on proposed EA and operational environment in which parties’ operated not oppressive. Respondent considered and responded to issues raised by first applicant. First applicant signed EA with five month term without protest. First applicant did not have right to attend huis but had legitimate expectation of attendance. First applicant unjustifiably disadvantaged by respondent’s failure to consult first applicant before forbidding first applicant from attending national hui. First applicant did not have right to attend Committee meetings. Arguable other coordinators attended Committee meetings in capacity relating to Committee functions rather than as employees. Committee should not have refused to countenance possibility of first applicant having contact with Committee without asking why access desired or providing reasons for refusal. First applicant unjustifiably disadvantaged by respondent’s failure to communicate clearly with first applicant over request for access to Committee. No evidence respondent met second applicant in good faith to explain why conduct regarded as health and safety risk or give second applicant opportunity to address concerns. Second applicant unjustifiably disadvantaged by respondent’s handling of allegation second applicant health and safety risk. UNJUSTIFIED DISMISSAL: Failure to consult first applicant about decision not to allow first applicant to attend national hui and refusal to allow first applicant to communicate with Committee directly not serious enough breaches to constitute repudiation of first applicant’s EA. Fundamental underlying duties of good faith and trust and confidence preserved between first applicant and respondent when first applicant resigned. No dismissal of first applicant. Foreseeable employee in teaching capacity accused of displaying behaviour amounting to health and safety risk but not afforded chance to defend themselves likely to resign. G’s decision not to give second applicant further teaching opportunities without giving second applicant opportunity to address concerns fundamental breach of duty of good faith. Second applicant constructively dismissed. Dismissal unjustified. REMEDIES: No contributory conduct (first applicant). 50 per cent contributory conduct (second applicant). $7,500 compensation appropriate for first applicant. $2,500 compensation appropriate for second applicant. |
| Result | Applications granted (unjustified disadvantage)(unjustified dismissal)(second applicant); Contributory conduct (50%)(second applicant); Compensation for humiliation etc ($7,500)(first applicant)($2,500)(second applicant); Application partially granted (raising personal grievance); Application dismissed (unjustified dismissal)(first applicant); Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s4;ERA s4(1A);ERA s4(1A)(b);ERA s60A;ERA s63A;ERA s63A(2);ERA s63A(2)(c);ERA s63A(2)(d);ERA s66;ERA s66(5);ERA s66(6);ERA s68;ERA s68(2)(c);ERA s68(2)(d);ERA s103(1)(b);ERA s103A;ERA s113;ERA s114;ERA s114(1);ERA s114(2);ERA s114(6);ERA s124 |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers IUOW Inc [1994] 1 ERNZ 168; [1994] 2 NZLR 415;Creedy v Commissioner of Police [2006] ERNZ 517;Hawkins v Commissioner of Police [2007] ERNZ 762;Pao On v Long [1980] AC 614;Pharmacy Care Systems Ltd v Attorney-General (2004) 2 NZCCLR 187;Premier Events Group Ltd v Beattie (No 3) (2012) 10 NZELC 79-011;Shivas v Bank of New Zealand [1990] 2 NZLR 327 |
| Number of Pages | 43 |
| PDF File Link: | 2012_NZERA_Christchurch_223.pdf [pdf 414 KB] |