| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 339 |
| Hearing date | 8 Aug 2014 |
| Determination date | 15 August 2014 |
| Member | R Larmer |
| Representation | M Nutsford ; G Mayes |
| Location | Auckland |
| Parties | Dearsly v Encore Designer Seconds Ltd t/a Encore Fashion Recycle |
| Summary | UNJUSTIFIED DISMISSAL - Constructive Dismissal - Applicant claimed unjustifiably dismissed by respondent - Whether respondent breached applicant's employment agreement fundamentally by unreasonably refusing to grant applicant's annual leave request over Christmas / New Year period - Sales assistant |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISMISSAL: Genuine commercial justification for not engaging cover for applicant over Christmas / New Year period. Compelling reasons for respondent's director not to cancel own longstanding leave arrangements. Respondent managed business in terms of operational and financial needs in accordance with consistent communication to staff over many months. Respondent made exception already for applicant by approving leave on one day. Respondent's decision not to grant applicant annual leave on two days during Christmas / New Year period not breach of duty much less fundamental breach of duty making resignation reasonably foreseeable. Respondent's decision not breach of s18(4) Holidays Act 2003. No dismissive or repudiatory conduct. No constructive dismissal. |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;Holidays Act 2003 s18(4) |
| 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;NZ Woollen Workers IUOW v Distinctive Knitwear NZ Ltd (1990) ERNZ Sel Cas 791;Ross v R & B Transport Services Ltd [2012] NZERA Auckland 266;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 | 8 |
| PDF File Link: | 2014_NZERA_Auckland_339.pdf [pdf 167 KB] |