| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2014] NZERA Christchurch 51 |
| Hearing date | 8 Nov 2013 |
| Determination date | 02 April 2014 |
| Member | C Hickey |
| Representation | A Oberndorfer ; A Gallagher |
| Location | Christchurch |
| Parties | Dillon v Impact Marketing Solutions Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Constructive Dismissal - Applicant claimed unjustifiably disadvantaged by removal of sales leads and respondent's delay in approving applicant's parental leave - Applicant claimed unjustifiably dismissed by respondent - Agreement applicant would take parental leave immediately on medical advice - Refusal to complete paperwork until applicant followed correct process - Refusal to accept e-mail application for parental leave - Intervention of Labour Inspector - Applicant notified of change of work location at end of parental leave - Extra travel time - Whether respondent failed to communicate about concerns raised by applicant - Refusal to attend mediation - Facebook post that applicant pleased to receive late parental leave payment in lump sum - PENALTY - GOOD FAITH - Applicant sought penalty for respondent's breach of good faith - COUNTERCLAIM - PENALTY - GOOD FAITH - Respondent sought penalty for applicant's breach of good faith - Whether applicant failed to communicate about state of health, misrepresented applicant's employment status online and failed to communicate about return to work - Facebook - LinkedIn - Senior Consultant |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL: Taking sales leads away from applicant could be seen as disadvantage to applicant's terms of employment. Some work would have been returned and other sales leads provided if applicant had remained at work. Applicant not unjustifiably disadvantaged by removal of sales leads. Applicant complied with requirement to make signed written application for parental leave. Applicant provided medical certificate complying with Parental Leave and Employment Protection Act 1987. Respondent told by Labour Inspector could not refuse to allow applicant to exercise parental leave rights due to irregularity in application but respondent did not sign form until almost month later. Applicant unjustifiably disadvantaged by respondent's delay in approving parental leave. No breach of duty regarding removal of applicant's sales leads. Respondent's delay in approving applicant's parental leave application not sufficiently dismissive or repudiatory conduct by itself to justify termination of employment relationship. Respondent's decision about work location not likely to have adverse effect on applicant's employment and no failure to be active and constructive in maintenance of productive employment relationship at time work premises changed. Respondent did not consider issues related to applicant as whole but did not want applicant to resign and respondent's failure to attend mediation to deal with disadvantage claim not destructive of trust and confidence. No constructive dismissal. REMEDIES: No contributory conduct. $2,500 compensation appropriate.;PENALTY - GOOD FAITH: No breach of good faith. No penalty.;COUNTERCLAIM - PENALTY - GOOD FAITH: Apart from one incident, no evidence applicant failed to be communicative with respondent about applicant's pregnancy and health. False information posted online by applicant about involvement with grandmother's business but did not have any negative effect on relationship with respondent before applicant's resignation. Both parties failed to be communicative about applicant's return from parental leave but applicant's failure to give appropriate notice misunderstanding of necessary process and result of indecision about whether to return to respondent rather than breach of good faith. No breach of good faith. No penalty. |
| Result | Application granted (unjustified disadvantage) ; Compensation for humiliation etc ($2,500) ; Applications dismissed (unjustified dismissal)(penalty - good faith)(counterclaim - penalty - good faith) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A);ERA s4(A)(2);ERA s4(1A)(3);ERA s4A;ERA s103(1)(b);ERA s103A(2);ERA s124;Parental Leave and Employment Protection Act 1987;Parental Leave and Employment Protection Act 1987 s10;Parental Leave and Employment Protection Act 1987 s12;Parental Leave and Employment Protection Act 1987 s13;Parental Leave and Employment Protection Act 1987 s31;Parental Leave and Employment Protection Act 1987 s31(3)(b);Parental Leave and Employment Protection Act 1987 s38;Parental Leave and Employment Protection Act 1987 s39 |
| 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;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 | 22 |
| PDF File Link: | 2014_NZERA_Christchurch_51.pdf [pdf 311 KB] |