| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2013] NZERA Auckland 356 |
| Hearing date | 14 Jun 2013 |
| Determination date | 12 August 2013 |
| Member | R A Monaghan |
| Representation | G MacMillan (in person) ; E Burke |
| Location | Hamilton |
| Parties | MacMillan v Seating To Go Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed unjustifiably disadvantaged by suspension and warning and unjustifiably dismissed by respondent – Respondent received complaint applicant made abusive and derogatory comments about respondent and disclosed personal information about directors – Applicant called to meeting to respond to complaint – Respondent undertook investigation – Staff questioned about applicant’s behaviour - Applicant suspended – Respondent concluded applicant probably made comments – Applicant given written warning – Applicant resigned - PENALTY - GOOD FAITH – Applicant sought penalty for respondent’s breach of good faith |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Applicant not advised of reasons for suspension. Suspension not imposed in accordance with employment agreement. Suspension not justified. Staff were given details of complaint and asked to comment. Respondent’s approach risked being perceived as fishing for negative statements. Principal concerns should have been with complaint and not past behaviour. Applicant not provided with detailed information about events surrounding complaint. Insufficient detail about circumstances to test client’s accusations. Client should have been asked to comment on applicant’s version of events. Respondent had no context on which to base assessment of client’s allegations. Warning not fair and reasonable. Applicant unjustifiably disadvantaged by suspension and warning. Respondent’s breaches not so serious as to cause resignation. No constructive dismissal. REMEDIES: $1,000 compensation appropriate for suspension and $4,000 compensation appropriate for warning.;PENALTY: Breaches did not meet threshold for penalty. No penalty. |
| Result | Application granted (unjustified disadvantage) ; Compensation for humiliation etc ($5,000) ; Applications dismissed (unjustified dismissal)(penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4A - ERA s103A |
| 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 |
| Number of Pages | 15 |
| PDF File Link: | 2013_NZERA_Auckland_356.pdf [pdf 268 KB] |