| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 103 |
| Hearing date | 4-5 Mar 2014 |
| Determination date | 21 March 2014 |
| Member | E Robinson |
| Representation | M Beech, J Sparrow ; P Crombie, K Hymers |
| Location | Tauranga |
| Parties | Edmonds v Bossanova Enterprises Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably dismissed by respondent – Whether applicant shouted at during disciplinary meeting – Verbal warning for poor performance – Whether applicant informed performance reached expected standards – Whether respondent demonstrated lack of trust in applicant by looking at applicant’s e-mails and paperwork after work hours – Failure to ensure respondent continued to sponsor event – Whether applicant adversely affected by lack of beds in penthouse suite applicant shared with other employees – Whether applicant overwhelmed by work – Whether applicant only English-only speaker – Whether applicant yelled at when failed to replace stapler – Stress leave – Whether applicant blamed for wrong file being sent to supplier – Whether new marketing manager appointed without applicant’s knowledge – Customer service / marketing coordinator |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Respondent angry during meeting but actions not destructive of employment relationship. Verbal warning not procedurally acceptable but respondent believed matter addressed informally and no indication respondent no longer wished to have ongoing employment relationship with applicant. No personal e-mails accessed by respondent and fact respondent accessed applicant’s work e-mails and paperwork did not indicate lack of trust and confidence in applicant’s work. Applicant took responsibility for respondent’s failure to secure continued sponsorship of event and no evidence of disciplinary action in connection with matter. Lack of beds in penthouse suite of hotel and alleged comment made by respondent when applicant presented with gift not actions repudiatory of employment relationship. Respondent did not disregard applicant’s wish to have further English-only speaker on staff or recruit Portuguese speaker with purpose of coercing applicant to resign. Applicant’s evidence of stapler incident contradicted by other evidence and did not amount to attempt to force applicant to resign. No evidence applicant reprimanded for sending wrong file to respondent’s supplier. Appointment of marketing manager not undertaken with purpose of coercing applicant to resign. Respondent did not embark upon course of conduct with deliberate and dominant purpose of coercing applicant to resign. No breach of duty owed to applicant in relation to trust, confidence and fair dealing. Applicant only raised one concern with respondent and failed to comply with duty of good faith by being responsive and communicative and allowing respondent opportunity to take corrective action. No constructive dismissal. |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A) |
| 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;Harrod v DMG World Media (NZ) Ltd [2002] 2 ERNZ 410;New Zealand Woollen Workers IUOW v Distinctive Knitwear NZ Ltd (1990) ERNZ Sel Cas 791;Stiffe v Wilson & Horton Ltd unreported, Goddard CJ, 5 December 2000, AC94/00;Wellington Road Transport etc IUOW v Fletcher Construction Co Ltd (1983) ERNZ Sel Cas 59;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 | 20 |
| PDF File Link: | 2014_NZERA_Auckland_103.pdf [pdf 257 KB] |