| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 81 |
| Hearing date | 18-19 Feb 2014 |
| Determination date | 07 March 2014 |
| Member | E Robinson |
| Representation | G Bennett |
| Location | Auckland |
| Parties | Filbury v Department of Corrections |
| Summary | UNJUSTIFIED DISMISSAL - Constructive Dismissal - Applicant claimed unjustifiably dismissed by respondent - Whether respondent failed to ensure applicant's safety - Whether respondent breached implied duty to maintain and build employment relationship by suggesting option of medical retirement - Complaint of threatening behaviour by prisoner (A") towards applicant - A sentenced to 28 days loss of privileges and assessed as "minimum" risk - Fact finding review into handling of complaint against A and review of A's security classification - Sick leave - Stress - Whether applicant subjected to constant taunting by A - Whether applicant's safety at risk by having to work with A - Temporary placement of applicant in different unit - Corrections officer" |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISMISSAL: Authority ordered non-publication of A's identity. Assignment of applicant to different unit temporary transfer within operational prerogative of respondent and not disciplinary in nature. Applicant failed to raise any issues about personal safety in working with A despite having full support of union and respondent not aware breach of duty regarding applicant's personal safety occurred. Respondent made every effort to engage with applicant about applicant's stress. Applicant declined repeated offers of assistance. Respondent acted as fair and reasonable employer towards employee with long-term sickness. Appropriate for respondent to undertake fact finding review into handling of complaint against A and subsequent security classification of A. Fact finding review undertaken in good faith and no indication applicant resigned because of outcome of fact finding review. No breach of duty by respondent regarding fact finding review. No breach of duty by respondent in requesting applicant undergo medical assessment or making option of medical retirement known. Applicant's resignation not made in heat of moment. No obligation on respondent to offer applicant cooling down" period, although respondent effectively did so. Reasonable for respondent to conclude applicant intended to resign and to accept applicant's resignation. No evidence respondent asking applicant to re-affirm decision to resign amounted to promise resignation would not be accepted until applicant did so. Respondent not estopped from relying on applicant's resignation. No constructive dismissal." |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA Second Schedule cl10(1) |
| 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;Boobyer v Good Health Wanganui Ltd unreported, Goddard CJ, 24 February 1994, WEC3/94;Harrod v DMG World Media (NZ) Ltd [2002] 2 ERNZ 410;NZ 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, Taranaki and Marlborough Clerical etc IUOW v Greenwich (t/a Greenwich and Associates Employment Agency and Complete Fitness Centre) (1983) ERNZ Sel Cas 95;Wellington Road Transport etc IUOW v Fletcher Construction Co Ltd (1983) ERNZ Sel Cas 59 |
| Number of Pages | 22 |
| PDF File Link: | 2014_NZERA_Auckland_81.pdf [pdf 338 KB] |