| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 440 |
| Hearing date | 27 Jun 2012 |
| Determination date | 06 December 2012 |
| Member | K J Anderson |
| Representation | J Humphrey ; A Lubbe |
| Location | Whakatane |
| Parties | Counsell v Repco New Zealand, a division of Exego Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably disadvantaged by final warning and unjustifiably dismissed by respondent – Respondent claimed applicant resigned voluntarily – Authority found applicant’s employment not affected to applicant’s disadvantage because applicant left employment without receiving written confirmation of warning – No unjustified disadvantage – Found no breach of any duty by respondent causing applicant’s resignation – No constructive dismissal – COUNTERCLAIM – GOOD FAITH – PENALTY – Respondent claimed applicant misled and deceived respondent during disciplinary investigation and sought penalty – Found while applicant’s credibility to be found wanting no breach of Employment Relations Act 2000 – No penalty – Salesperson |
| Abstract | Applicant employed by respondent as salesperson. Applicant claimed unjustifiably disadvantaged by final warning and unjustifiably dismissed by respondent. Applicant given two blow-up products (“alien”) by sales representative (“X”) from other company for applicant’s personal use. Applicant ordered five further aliens and four purchased by colleague. Respondent’s manager (“W”) informed packaged alien in applicant’s personal tray and three days later W discovered alien could not be located. W’s inquiries led W to conclude one of five aliens missing and last time alien seen by W and others was in applicant’s personal tray. W claimed applicant admitted taking alien home but applicant’s colleague denied applicant’s claim alien taken for colleague’s son. After disciplinary meeting applicant told would receive final warning. Respondent agreed to postpone issuing warning to allow applicant to verify X had given applicant free alien. Applicant claimed returned to work after disciplinary meeting but found work so uncomfortable unable to continue working at respondent. Applicant resigned before receiving warning for making false declarations during investigation and disciplinary meeting. Applicant claimed constructively dismissed. Respondent claimed applicant never returned to work after disciplinary meeting, presented medical certificate and applicant’s employment not terminated until applicant’s resignation. Respondent claimed applicant misled and deceived respondent during disciplinary investigation and sought penalty.;AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Applicant did not return to work after disciplinary meeting and applicant’s employment not affected to applicant’s disadvantage because left employment without receiving written confirmation of warning. No unjustified disadvantage. Applicant’s evidence around ending of employment not credible. No breach of any duty by respondent causing applicant’s resignation. No constructive dismissal.;COUNTERCLAIM – GOOD FAITH – PENALTY: While applicant’s credibility to be found wanting no breach of Employment Relations Act 2000. No penalty. |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s4(1)(b);ERA s4(1A)(b) |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers Industrial Union of Workers Inc [1994] 1 ERNZ 168 ; [1994] 2 NZLR 415 |
| Number of Pages | 10 |
| PDF File Link: | 2012_NZERA_Auckland_440.pdf [pdf 186 KB] |