| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 83 |
| Hearing date | 6 Mar 2014 |
| Determination date | 11 March 2014 |
| Member | R Larmer |
| Representation | M Nutsford ; J Ren |
| Location | Auckland |
| Parties | Lock v HL Group t/a The Farmhouse Cafe |
| Summary | UNJUSTIFIED DISMISSAL - Constructive Dismissal - Applicant claimed unjustifiably dismissed by respondent - Defective request for extended parental leave - Attempt to return to work after parental leave - Sporodic offers of work - Whether applicant prepared to work - Whether applicant entitled to treat employment at end when not allowed to return to work on pre-parental leave hours - Floor manager |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISMISSAL: Authority noted reduction of applicant's hourly rate before applicant on parental leave unlawful unilateral action arising solely from applicant's pregnancy. Respondent reluctant to have applicant back at work because of performance concerns that were never raised with applicant fairly. Applicant's need to take genuine sick leave on particular day did not undermine right to return to normal position at end of parental leave. No information provided as to why system changes made or why changes required applicant to work short hours. Applicant made respondent aware of need for set days and hours of work to be able to arrange childcare but respondent did not address applicant's reasonable and legitimate concern. Applicant still not allowed to return to pre-parental leave hours of work one and a half months after attempting to return and no arrangements made for applicant to work remainder of month. Understandable applicant concluded pre-parental leave position not available. Applicant constructively dismissed. Applicant denied right to return to work after parental leave and issues arising from lack of clarity as to return to work date caused by respondent's failure to provide applicant notice required under Parental Leave and Employment Protection Act 1987. Respondent did not comply with procedural fairness or good faith obligations. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $6,825 reimbursement of lost wages. $6,500 compensation appropriate. |
| Result | Application granted ; Reimbursement of lost wages ($6,825) ; Compensation for humiliation etc ($6,500) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s4;ERA s63A;ERA s65;ERA s103A;ERA s103A(3);ERA s124;ERA s128(2);Parental Leave and Employment Protection Act 1987 |
| Number of Pages | 11 |
| PDF File Link: | 2014_NZERA_Auckland_83.pdf [pdf 236 KB] |