| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 233 |
| Hearing date | 11 Sep 2012 - 12 Sep 2012 (2 days) |
| Determination date | 26 October 2012 |
| Member | C Hickey |
| Representation | D P6ine ; R Chapman |
| Location | Invercargill |
| Parties | McNaught v Prime Range Meats Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably disadvantaged by content of written warning and constructively dismissed or alternatively unjustifiably disadvantaged by transfer to new work area – Authority found respondent entitled to make operational changes and allocate labour to different parts of respondent but real reasons for moving applicant to second area were applicant’s altercation with colleague (“S”) and respondent’s wish not to have applicant and S working together without supervision – Fair and reasonable employer could have made decision to allocate applicant to work in second area - Found respondent’s inclusion of historic matters in warning meant respondent failed to raise concerns about prior history with applicant and failed to give applicant reasonable opportunity to respond to concerns – Applicant unjustifiably disadvantaged by respondent including historic matters in written warning but applicant’s proposed transfer to second area did not disadvantage applicant - Found respondent’s inclusion of historic matters in written warning did not make it reasonably foreseeable that was substantial risk applicant would resign - No constructive dismissal - REMEDIES - No contributory conduct - $1,250 compensation appropriate - Labourer |
| Abstract | Applicant employed as labourer. Applicant claimed had been constructively dismissed by respondent when was transferred from previous work area (“first area”) to new area (“second area”). Applicant claimed alternatively unjustifiably disadvantaged by transfer and by respondent issuing applicant with warning referring to historic matters. Respondent denied applicant had been unjustifiably disadvantaged and claimed applicant abandoned employment. Applicant involved in verbal and physical altercation with colleague (“S”) in first area (“incident”). S made complaint about applicant’s behaviour and claimed subjected to constant personal attacks. Investigation commenced. Respondent told applicant viewed incident as “severe.” Parties met against following day, respondent told applicant could have suspended applicant and applicant offered to resign. Applicant issued with final written warning and told would be further meeting to discuss warning. S also issued with written warning. No further meeting to discuss warning and not issued before applicant took two months’ leave. Witness (“T”) claimed S “came running” at applicant and pushed up against applicant before S and applicant had argument. S disputed T’s account. Applicant given written warning when returned from leave and told to work in second area. Respondent denied told applicant if did not accept transfer to second area would be dismissed. Applicant claimed respondent breached trust and confidence in deciding applicant would work in second area without consulting applicant. Applicant told respondent wanted time to consider moving but did not return to workplace. Applicant claimed considered incident resolved after told would receive written warning, did not expect further consequences when returned from leave and expected would continue working in first area. Respondent management claimed applicant not returned to first area for multiple reasons including that respondent did not want to disrupt running of first area, did not want applicant and S working together without supervision and applicant had history of poor relationships with colleagues. Applicant claimed first area included cleaning which was further source of revenue not available in second area.;AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL: Respondent entitled to make operational changes and allocate labour to different parts of respondent. Authority did not accept respondent had real concerns about applicant’s performance in first area. Real reasons for moving applicant to second area were applicant and S’s altercation and respondent’s wish not to have applicant and S working together without supervision. Applicant not made aware that respondent was considering earlier incidents and these would be included in final written warning. Applicant only accepted would receive final written warning for incident. Respondent’s inclusion of historic matters in warning meant respondent failed to raise concerns about prior history with applicant and failed to give applicant reasonable opportunity to respond to concerns. Respondent’s actions relating to warning not procedurally fair. Applicant unjustifiably disadvantaged by respondent including historic matters in written warning. Respondent not required to first consult employee before employee reassigned to other duties. Fair and reasonable employer could have made decision to allocate applicant to work in second area. Authority satisfied that applicant’s pay rate, hours and availability of work not less than those previously available to applicant in first area. Loss of cleaning in first area did not disadvantage applicant as not likely applicant would be undertaking cleaning if had returned to first area. Applicant’s proposed transfer to second area did not disadvantage applicant. Even if was disparity of treatment between respondent’s treatment of applicant and S, respondent had genuine reason. Respondent’s inclusion of historic matters in written warning did not make it reasonably foreseeable that was substantial risk applicant would resign. No constructive dismissal. REMEDIES: No contributory conduct. $1,250 compensation appropriate. |
| Result | Application granted (unjustified disadvantage) ; Compensation for humiliation etc ($1,250) ; Application dismissed (unjustified dismissal) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103(1)(b);ERA s103A;ERA s103A(3) |
| Cases Cited | Alliance Freezing Co (Southland) Ltd v New Zealand Amalgamated Engineering etc IUOW (1989) ERNZ Sel Cas 575 ; [1990] 1 NZLR 533;Angus v Ports of Auckland Ltd (2011) 9 NZELC 94,015;Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers IUOW Inc [1994] 1 ERNZ 168 ; [1994] 2 NZLR 415;Auckland etc Shop Employees etc IUOW v Woolworths (NZ) Ltd (1985) ERNZ Sel Cas 136 ; [1985] 2 NZLR 372;Chief Executive of the Department of Inland Revenue v Buchanan (No 2) [2005] ERNZ 767;Walls v Commissioner of Police [1998] 1 ERNZ 224;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 | 18 |
| PDF File Link: | 2012_NZERA_Christchurch_233.pdf [pdf 235 KB] |