| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2014] NZERA Wellington 6 |
| Hearing date | 13-14 Nov 2013;19 Nov 2013 |
| Determination date | 21 January 2014 |
| Member | M Ryan |
| Representation | G Ballara ; P Churchman, A Higgins |
| Parties | Crumlish v Streedagh Ltd t/a The Green Man Pub |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Constructive Dismissal – PARENTAL LEAVE – Applicant claimed unjustifiably disadvantaged by disingenuous process to disestablish applicant’s position and unjustifiably dismissed by respondent – Applicant claimed respondent breached obligations under Parental Leave and Employment Protection Act 1987 (“PLEPA”) by replacing applicant – Whether applicant pressured to relinquish position and perform duties of Functions Manager after applicant informed respondent of pregnancy – Whether applicant ignored or shouted at by respondent’s directors – Whether respondent’s directors canvassed with other employees whether atmosphere would improve if applicant left – Proposal to disestablish applicant’s position – Whether applicant discriminated against on ground of family status – Concerns expressed by employees about way applicant treated by respondent – Whether restructure proposal predetermined and sham – Resignation while on parental leave – ARREARS OF WAGES – Applicant sought arrears of wages – RECOVERY OF MONIES – Applicant sought recovery of phone expenses – General Manager |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – PARENTAL LEAVE: Applicant not pressured to relinquish General Manager position to degree claimed by applicant and respondent did not breach obligation to act as fair and reasonable employer. “Work in progress” meeting not disciplinary in nature and respondent entitled to discuss with applicant as General Manager growing concerns about customer service and improvement in delivery of service through respondent’s employees. No evidence to support applicant’s view respondent asked other employees whether atmosphere would improve in applicant’s absence. Little tangible evidence behaviour of respondent’s directors towards applicant changed. Genuine financial grounds for respondent to contemplate restructure, restructure proposal not progressed and proposal to disestablish position not evidence of fundamental breach of employment agreement. No unjustified disadvantage. Insufficient evidence respondent determined applicant dismissed. Applicant not discriminated against due to pregnancy. Applicant’s resignation not inevitable and not caused by breach of duty by respondent. No constructive dismissal. No breach of respondent’s obligations under PLEPA.;ARREARS OF WAGES: Delay in negotiating terms and conditions for General Manager role not solely due to respondent. No reference in employment agreement to back pay for period of negotiation. Unlikely respondent would commit to back payment during negotiations for employment agreement when quantification of applicant’s salary not resolved. No arrears of wages.;RECOVERY OF MONIES: No agreement applicant would receive fixed reimbursement of phone expenses. No recovery of monies. |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Parental Leave and Employment Protection Act 1987 |
| 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;Review Publishing Co Ltd v Walker [1996] 2 ERNZ 407;Weston v Advkit Para Legal Services Ltd (2011) 8 NZELR 604 |
| Number of Pages | 17 |
| PDF File Link: | 2014_NZERA_Wellington_6.pdf [pdf 318 KB] |