| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 262 |
| Hearing date | 2 Oct 2012 - 3 Oct 2012 (2 days) |
| Determination date | 04 December 2012 |
| Member | J Crichton |
| Representation | T Jackosn ; A Shakespeare |
| Location | Timaru |
| Parties | Hunt v Hilton Haulage Transport Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably disadvantaged by respondent’s actions and unjustifiably dismissed by respondent – Respondent claimed applicant resigned to take up alternative employment – Authority found preferable for respondent to put applicant on notice of restructure after applicant received medical clearance to return to work but respondent did not act contrary to law – Found respondent’s claim presented proposal only to applicant at initial meeting supported by documentary evidence – Found initiation of restructure proper – Found decision to suspend applicant driven to very large extent by applicant’s refusal to take responsibility for fact message to manager (“G”) sent from applicant’s phone and refusal to empathise with G’s anxiety – Found respondent had obligation to respond appropriately to protect G – Suspension justified – Found no evidence of actual or constructive dismissal during telephone conference and normal incidents of employment continued after telephone conference – Found while virtually no face to face contact between parties, respondent offered opportunity for consultation on restructure and considered applicant’s observations – No unjustified disadvantage – Found if applicant resigned did so when indicated would treat employment at end and resignation prompted by applicant securing new position – No constructive dismissal – Administration support |
| Abstract | Applicant employed by respondent as administration support. Applicant claimed unjustifiably disadvantaged by respondent’s actions and unjustifiably dismissed by respondent. Applicant asked to attend meeting 15 minutes after returning to work after extended period of sick leave. Applicant informed respondent’s office staff to be restructured and one potential consequence disestablishment of applicant’s position. Respondent denied told applicant position disestablished as plan proposal only. Applicant claimed manager (“L”) should not have attended meeting as no personal association with applicant. Applicant’s advocate raised issues about restructuring process and respondent replied next day. Applicant claimed distressed by tone of respondent’s reply and applicant’s husband sent intemperate text message to applicant’s manager (“G”) using applicant’s work phone. Respondent considered message contained implied threat and chief executive (“C”) claimed obligation to protect G. C denied being aggressive or intimidating during telephone conference with applicant next day (“telephone conference”). C claimed unable to get any sense from applicant responsible for what happened on applicant’s work phone or applicant understood text message distressing for G. Applicant suspended. Nine days later respondent decided no further action to be taken regarding text message. Following day applicant claimed dismissed by respondent during telephone conference. Following meeting between parties and further claims by applicant had been dismissed, applicant indicated intention to treat employment at end.;AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: While decision to engage applicant about restructure immediately on applicant’s return from sick leave appeared harsh, option taken by respondent probably lesser of several evils. Preferable for respondent to put applicant on notice of restructure after applicant received medical clearance to return to work but respondent did not act contrary to law. Respondent’s claim presented proposal only to applicant at initial meeting supported by documentary evidence and respondent clear no decision made. No breach of legal obligation by having L involved in meeting. Initiation of restructure proper. Applicant had nothing to do with sending text message to G. Decision to suspend applicant driven to very large extent by applicant’s refusal to take responsibility for fact message sent from applicant’s phone and refusal to empathise with G’s anxiety. Respondent had obligation to respond appropriately to protect G. Suspension justified. No evidence of actual or constructive dismissal during telephone conference, normal incidents of employment relationship continued after telephone conference and respondent consistent in refuting applicant’s claim had been dismissed. No dismissal during telephone conference. Restructure genuine. Applicant’s advocate entitled to raise questions about whether restructure genuine and made clear personal meetings not opposed per se. While virtually no face to face contact between parties, respondent offered opportunity for consultation on restructure and considered applicant’s observations. No failure to consult. No unjustified disadvantage. If applicant resigned did so when indicated would treat employment at end and resignation prompted by applicant securing new position. No constructive dismissal. |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;Health and Safety in Employment Act 1992 |
| Cases Cited | Rathnayaka v Lab Tests Auckland Ltd unreported, M Loftus, 26 August 2010, AA 334A/10 |
| Number of Pages | 18 |
| PDF File Link: | 2012_NZERA_Christchurch_262.pdf [pdf 210 KB] |