| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2013] NZERA Christchurch 57 |
| Hearing date | 22 - 23 Jan 2013 |
| Determination date | 22 March 2013 |
| Member | D Appleton |
| Representation | L Ryder, J Goldstein ; K Sagaga |
| Location | Christchurch |
| Parties | Teding van Berkhout v The Commissioner of Police |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably disadvantaged by respondent’s refusal to consider leave application until applicant accepted roster changes and unjustifiably dismissed by respondent – Authority found reasonable for respondent to await agreement as to roster before considering leave application – No unjustified disadvantage – Found parameters of new roster imposed on applicant without consultation but applicant’s resignation not caused by parameters themselves – Found no constructive dialogue regarding applicant’s specific work arrangements – Found on balance applicant’s request to start shift half hour after specified time in roster could have been accommodated and respondent unnecessarily inflexible in insisting applicant commence shift at specified time – Found applicant made clear could not work hours imposed and effectively put respondent on notice may have to resign – Found no fair and reasonable employer could have failed to consult properly with applicant in circumstances where fundamental change to applicant’s working hours required and in knowledge changes would cause applicant significant problems – Found no fair and reasonable employer could have exercised contractual right to make applicant revert to full-time hours without consultation and respondent’s failure to consult meant applicant did not consent willingly to changed roster – Found applicant did not affirm contract but maintained objections after began working new roster – Found applicant’s resignation caused by respondent’s breaches of good faith obligation – Found applicant constructively dismissed – Dismissal unjustified – REMEDIES – No contributory conduct – Respondent to pay applicant $9,287 reimbursement of lost wages – $10,000 compensation appropriate – Police officer |
| Abstract | Applicant employed by respondent as police officer. Applicant claimed unjustifiably disadvantaged by respondent’s refusal to consider leave application until applicant accepted roster changes and unjustifiably dismissed by respondent. Applicant approved to work reduced hours under flexible employment option policy (“FEO agreements”). Respondent reorganised communications operation and concluded necessary to have same rosters worked throughout country. Applicant informed new roster for part-time staff and staff working reduced hours under FEO agreements would need to comply with certain criteria. Applicant claimed needed to fit in with husband’s police shift roster and start times of new shifts not appropriate as not sufficient time for applicant and husband to transfer children at end of husband’s shift. Applicant claimed wanted to keep two eight hour shifts per week. Respondent replied applicant’s hours needed to be increased to 20 per week and required to start at specified time. Applicant told if new FEO agreement not reached by specified date, applicant would revert to full-time hours. Applicant attended meeting with work force analyst (“C”) and indicated hours within respondent’s requirements applicant would work. Applicant claimed felt no option but to agree as otherwise would become full-time employee. Applicant claimed told C hours did not work for applicant but C continued regardless. New hours equalled 20 hours per week and required applicant to work more shifts beginning at specified time. Applicant told new FEO agreement for six month period and if FEO agreement not extended applicant would revert to full-time hours. Applicant told previous annual leave application would not be considered until roster resolved. Applicant claimed respondent implied application would be declined if applicant did not accept new roster and together with threat applicant would revert to full-time hours led applicant to conclude no option but to accept new roster. Applicant returned signed FEO documentation after being reminded and told applicant would revert to full-time hours if did not but stated document signed under protest and subject to applicant’s legal rights. On same day applicant wrote to district commander stating strict hours introduced by respondent made it difficult for applicant to continue working for respondent. Applicant worked new roster for three months. Applicant retired and claimed constructively dismissed. Applicant claimed permanent part time employee threatened with full-time contract in breach of employment agreement. Respondent claimed applicant accepted changes.;AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Reasonable for respondent to await agreement with applicant as to roster before considering leave application and actions not ruse to force applicant to accept new rosters. No unjustified disadvantage. No significant difference between resignation and retirement for purposes of constructive dismissal claim. Applicant transferred to current worksite under letter stating applicant’s hours not permanent part-time and applicant remained full-time employee working reduced hours under FEO agreements. Parameters of new shift roster imposed on applicant without consultation in breach of Employment Relations Act 2000 and FEO policy. Applicant’s resignation caused by respondent’s refusal to consider reduced hours outside general parameters of new shift roster, rather than general parameters themselves, so failure to consult did not cause applicant’s resignation. No constructive dialogue regarding applicant’s specific work requirements in which respondent explored ways of resolving concerns actively. On balance applicant’s request to start shift half hour after specified time could have been accommodated without adverse impact upon service and respondent unnecessarily inflexible in insisting applicant commence shift at specified time. Applicant made clear could not work hours imposed and effectively put respondent on notice may have to resign. While applicant inflexible in working hours proposed, no fair and reasonable employer could have failed to consult properly in circumstances where fundamental change to applicant’s working hours required and in knowledge changes would cause applicant significant problems. Applicant accepted new hours because felt genuinely had no choice as would have to resign if required to work full-time hours and tried to argue for workable roster without any indication from respondent representations would be considered. No fair and reasonable employer could have exercised contractual right to make applicant revert to full-time hours without consultation and respondent’s failure to consult meant applicant did not consent willingly to changed roster. Applicant’s subsequent actions, including writing to district commander, not actions of person acquiescing to new roster and applicant maintained objections by actions after began working new roster. Applicant’s resignation caused by respondent’s breaches of good faith obligation. Applicant constructively dismissed. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $9,287 reimbursement of lost wages. $10,000 compensation appropriate. |
| Result | Application granted (unjustified dismissal) ; Reimbursement of lost wages ($9,287.20) ; Compensation for humiliation etc ($10,000) ; Application dismissed (unjustified disadvantage) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s4(1A);ERA s4(1A)(b);ERA s4(1A)(c);ERA s103A;ERA s124;ERA s128(2);ERA s128(3) |
| Cases Cited | Auckland etc Shop Employees etc IUOW v Woolworths (NZ) Ltd (1985) ERNZ Sel Cas 136 ; [1985] 2 NZLR 372;Barry v Anoop Investments Ltd unreported, M Urlich, 18 January 2007, AA 11/07;Commissioner of Police v Hawkins [2009] 3 NZLR 381;Holland v Glendale Industries Ltd [1998] ICR 493;Lewis v Motorworld Garages Ltd [1986] ICR 157;Para Franchising Ltd v Whyte [2002] 2 ERNZ 120;Review Publishing Co Ltd v Walker [1996] 2 ERNZ 407;Simpsons Farms Ltd v Aberhart [2006] ERNZ 825;Trotter v Telecom Corp of New Zealand Ltd [1993] 2 ERNZ 659;Wellington District Hotel etc IUOW v Castlecliff Club Inc (1984) ERNZ Sel Cas 123;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;Weston v Advkit Para Legal Services Ltd (2011) 8 NZELR 604 |
| Number of Pages | 29 |
| PDF File Link: | 2013_NZERA_Christchurch_57.pdf [pdf 414 KB] |