| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 10 |
| Hearing date | 29 Oct 2012 |
| Determination date | 10 January 2013 |
| Member | T G Tetitaha |
| Representation | D Wilson (in person) ; J O'Connell |
| Location | Auckland |
| Parties | Wilson v Life Education Trust, Rodney |
| Summary | UNJUSTIFIED DISMISSAL – Abandonment – Applicant claimed unjustifiably dismissed by respondent – Authority found applicant’s resignation not reasonably foreseeable – No constructive dismissal – Found respondent did not give detail to applicant about alleged serious misconduct – Found respondent failed to raise abandonment of employment concerns with applicant prior to dismissal – REMEDIES – 100 per cent contributory conduct - Educator |
| Abstract | Applicant employed by respondent as Educator. Applicant claimed unjustifiably dismissed by respondent. Applicant provided with work vehicle. Work vehicle failed warrant but applicant instructed to continue driving. Subsequently applicant lost traction on road and told respondent’s Chair (“B”) applicant unable to attend work function as unsafe to drive. Applicant later told B applicant unable to clean carpets of mobile classroom as applicant had no car. B angry and yelled at applicant on phone. B subsequently apologised for behaviour via text message. Applicant did not accept apology. Applicant sent letter to respondent advising initiation of personal grievance based on abusive phone call and being bullied into driving unsafe car. Meeting held to discuss applicant’s concerns and applicant subsequently told B to be replaced as Chair. Following meeting applicant resigned stating irreconcilable differences. Applicant claimed constructively dismissed. Applicant agreed to work out 3 months’ notice period. One week later B emailed applicant alleging serious misconduct but did not give details. During further correspondence between parties applicant sought confirmation required to work out notice period. B said applicant required to work out notice. Applicant did not return to work. B emailed applicant stating employment terminated immediately due to unauthorised absence and referred to misconduct. Applicant dismissed. Applicant claimed constructively dismissed;AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Respondent did not act fairly and reasonably towards applicant however resignation not reasonably foreseeable as B apologised for phone call, applicant provided with safe car and applicant told B to be replaced as Chair. No constructive dismissal. Respondent did not give detail about alleged serious misconduct and ignored applicants request for further information. Respondent failed to raise abandonment of employment concerns with applicant prior to dismissal. Respondent failed to give applicant opportunity for explanation. Dismissal unjustified. REMEDIES: Clear applicant was required to work out notice and applicant contributed to dismissal by not returning to work - 100 per cent contributory conduct |
| Result | Application granted (unjustified dismissal); Contributory conduct (100%); Costs to lie where they fall |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A)(b) - ERA s103A – ERA s103A(3) – ERA s103A(5) – ERA s124 - ERA s128(2) |
| Cases Cited | 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;Turner v Ogilvy & Mather (NZ) Ltd [1995] 1 ERNZ 11;Wellington Road Transport etc IUOW v Fletcher Construction Co Ltd (1983) ERNZ Sel Cas 59;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 | 10 |
| PDF File Link: | 2013_NZERA_Auckland_10.pdf [pdf 201 KB] |