| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2013] NZERA Christchurch 94 |
| Hearing date | 19 Apr 2013 |
| Determination date | 30 May 2013 |
| Member | D Appleton |
| Representation | P van Keulen ; L Ryder |
| Location | Christchurch |
| Parties | Morrison v Design Plus Build Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably disadvantaged by respondent’s actions and unjustifiably dismissed by respondent – Whether applicant promoted to project manager, and health and safety officer – Whether project manager role temporary – Parties agreed applicant would be site foreman – Applicant able to continue project management work – Argument over timber delivery – Respondent swore at applicant – Applicant stormed out – Respondent accused applicant in text message of “being childish and weak” – Applicant complained about respondent’s conduct – Whether applicant removed from project management – Applicant fractured arm – No suitable light duties – Applicant required to go on ACC – Applicant sought meeting with respondent – Applicant required to return to different site as carpenter – Respondent sent applicant new employment agreement – PENALTY – Applicant sought penalties for respondent’s breach of good faith duty, breach of Holidays Act 2003 and failure to provide employment agreement – Whether respondent unlawfully withheld holiday pay – Project manager |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: No deliberate intention to make applicant resign. Timber incident seen as example of applicant working inefficiently. Respondent unilaterally determined to take project manager role away from applicant. No consultation with applicant about removing responsibilities. No opportunity for applicant to improve. Applicant reasonably inferred deliberate ploy to demote applicant. Applicant employed as project manager prior to sick leave. Respondent breached duty of good faith. Respondent’s actions amounted to repudiatory breach of employment agreement. Applicant’s resignation foreseeable. Applicant unjustifiably disadvantaged by respondent’s actions. Applicant constructively dismissed. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $5,185 reimbursement of lost wages. Interest payable. $8,000 compensation appropriate.;PENALTY: Respondent’s actions deliberate and cumulatively breached good faith. Respondent used holiday pay as leverage. Respondent aware of obligation to pay and withholding holiday pay cynical disregard for law. $2,000 penalty appropriate for respondent’s breach of good faith and $5,000 penalty appropriate for respondent’s failure to pay holiday pay. No penalty for respondent’s failure to provide employment agreement. |
| Result | Applications granted ; Reimbursement of lost wages ($5,185.28) ; Interest (5%) ; Compensation for humiliation etc ($8,000) ; Penalty ($4,500)(payable to applicant)($2,500)(payable to Crown) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1);ERA s4A;ERA s103A;ERA s124;ERA s128(2);ERA s128(3);ERA Second Schedule cl11;Holidays Act 2003;Holidays Act 2003 s75 |
| Cases Cited | Auckland etc Shop Employees etc IUOW v Woolworths (NZ) Ltd (1985) ERNZ Sel Cas 136 ; [1985] 2 NZLR 372;Cooke v JKL Entertainment Ltd [2012] NZERA Christchurch 134;Review Publishing Co Ltd v Walker [1996] 2 ERNZ 407;Strachan v Moodie (2012) 10 NZELR 216;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 (2010) 8 NZELR 604 |
| Number of Pages | 24 |
| PDF File Link: | 2013_NZERA_Christchurch_94.pdf [pdf 325 KB] |