| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2014] NZERA Christchurch 152 |
| Hearing date | 28 Aug 2014 |
| Determination date | 01 October 2014 |
| Member | D Appleton |
| Representation | L Carrington (in person) ; M Soni |
| Location | Timaru |
| Parties | Carrington v Tayside Springs Ltd |
| Summary | RAISING PERSONAL GRIEVANCE - Whether grievance raised within 90 days - UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Constructive Dismissal - Applicant claimed unjustifiably disadvantaged by reduction in hours and unjustifiably dismissed by respondent - Whether applicant's hours systematically reduced until income too low to live off |
| Abstract | AUTHORITY FOUND -;RAISING PERSONAL GRIEVANCE: Letter from applicant's lawyer raising grievance sent to respondent prior to applicant's resignation. Correspondence raised applicant's concerns with sufficient specificity and no objection raised by respondent that unjustified dismissal grievance not raised properly. Unjustified dismissal grievance raised within 90 days. Unjustified disadvantage grievance not raised until letter sent by applicant's lawyer so claim could only extend to point 90 days before letter sent. Grievance that applicant discriminated against on grounds of age not raised within 90 days.;UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL: Respondent did not follow course of conduct with deliberate and dominant purpose of coercing applicant to resign. Applicant's hours could be varied subject to minimum of 30 hours per week. Even if applicant had right to work night porter duties, applicant acquiesced in removal of right by continuing to work without protest for several months. Respondent failed to act in good faith by not speaking to applicant about concerns despite receiving letter from lawyer stating applicant considering resigning if full time hours not restored. Respondent's failure fundamental and repudiatory breach of contract. Failure to engage with applicant not action of fair and reasonable employer. Applicant constructively dismissed when received new roster after lawyer's letter had been written and no response received from respondent. Dismissal unjustified. Applicant not offered enough work to enable applicant to work contracted 30 hours per week. Applicant unjustifiably disadvantaged when rostered to work less than 30 hours per week. REMEDIES: No contributory conduct. Respondent to pay applicant $1,441 reimbursement of lost wages for unjustified disadvantage and $7,800 reimbursement of lost wages for unjustified dismissal. $7,500 compensation appropriate. |
| Result | Applications granted (unjustified disadvantage)(unjustified dismissal) ; Reimbursement of lost wages ($1,441)(unjustified disadvantage)($7,800)(unjustified dismissal) ; Compensation for humiliation etc ($7,500) ; Application partially granted (raising personal grievance) ; Disbursements in favour of applicant ($71.56)(filing fee) ; No order for costs |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s4;ERA s4(1A);ERA s103A(2);ERA s114(1);ERA s114(3);ERA s114(4);ERA s124;ERA s128 |
| Number of Pages | 15 |
| PDF File Link: | 2014_NZERA_Christchurch_152.pdf [pdf 267 KB] |