| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 214 |
| Hearing date | 14 May 2013 |
| Determination date | 24 May 2013 |
| Member | A Fitzgibbon |
| Representation | G Slade ; R Nabney |
| Location | Auckland |
| Parties | Cairns v Bike Retail Group Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably dismissed by respondent – Migrant worker – Probationary period – Applicant thought job being advertised – Applicant queried respondent – Whether respondent addressed concerns – Probationary period extended to allow improvements – Applicant heard rumours about to be dismissed – Applicant sought new job with competitor – Applicant resigned – COUNTERCLAIM – RESTRAINT OF TRADE – Whether applicant breached restraint of trade – Retail manager |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Trial period could not exceed 90 days. Respondent erroneously relied upon provision in employment agreement allowing extension of probationary period. No intention to dismiss applicant. No dismissive or repudiatory conduct. Applicant made incorrect assumptions about employment. Unusual for notice period to be worked when employee claimed employer fundamentally breached employment agreement. No constructive dismissal.;COUNTERCLAIM – RESTRAINT OF TRADE: Respondent took no steps to enforce restraint until 15 months after restraint period ended. No evidence of loss or damage. Counterclaim dismissed. |
| Result | Applications dismissed ; Costs to lie where they fall |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s67A;ERA s67A(2)(a) |
| 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;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 | 8 |
| PDF File Link: | 2013_NZERA_Auckland_214.pdf [pdf 244 KB] |