| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2014] NZERA Auckland 405 |
| Hearing date | 22-24 Jul 2014 |
| Determination date | 06 October 2014 |
| Member | D Appleton |
| Representation | E Burke (in person), E Miles ; R Upton |
| Location | Hamilton |
| Parties | Burke v Employers & Manufacturers Assoc (Northern) Inc |
| Summary | UNJUSTIFIED DISMISSAL - Constructive Dismissal - Applicant claimed unjustifiably dismissed by respondent - Whether respondent failed to take applicant's concerns about consultant (X") seriously - UNJUSTIFIED DISADVANTAGE - Applicant claimed unjustifiably disadvantaged by respondent's actions - Obligation to provide safe workplace - PENALTY - GOOD FAITH - Applicant sought penalty for respondent's breach of good faith and breach of employment agreement ("EA") - Whether failure to provide information - Whether respondent engaged in deceptive and misleading conduct - ARREARS OF WAGES - Applicant sought arrears of wages - Whether applicant paid minimum wage - Senior solicitor" |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISMISSAL: Authority ordered non-publication of evidence and pleadings identifying X or respondent's clients, and fees generated by and paid to any consultant of respondent. Authority ordered non-publication of evidence and pleadings identifying remuneration of respondent's employees and fees generated by employees (except for applicant), and remuneration earned by applicant at new employer. Applicant's concerns about bullying by managers did not form part of expressed reasons for resignation. Billing targets for other lawyers also treated as minimum billing requirements. No disparity of treatment between applicant and other lawyers. Appropriate for respondent to make clear that proposed change to applicant's remuneration dependant upon achieving minimum billing requirements. No breach of duty for respondent to tell applicant could be subjected to performance management or made redundant if accepted remuneration changes and did not achieve minimum billing requirements. Incumbent upon applicant to ask questions if uncertain about time within which minimum billing requirements to be met. Respondent made number of genuine efforts to investigate and resolve applicant's concerns about X. Respondent took steps to police rules around allocation of clients. Drop in applicant's allocations and fee revenue caused by factors other than X's conduct. X may have acted dishonestly but no breach of good faith in respondent taking X's word and allowing X to bill certain clients. Any losses attributable to X's conduct not significant and not respondent's liability. Applicant resigned because accepted new position. Applicant's resignation not foreseeable. No duty on respondent to check applicant's intention given unequivocal resignation. No constructive dismissal.;UNJUSTIFIED DISADVANTAGE: No evidence applicant bullied, threatened or intimidated by managers. Fair and reasonable for respondent's chief executive to speak to manager in absence of applicant asking for formal investigation or raising personal grievance against manager. No unjustified different treatment of applicant as compared to colleagues. No legal right for applicant to be informed of remuneration and billing of other lawyers. No breach of duty for respondent to tell applicant could be subjected to performance management or made redundant if did not achieve minimum billing requirements quickly. Respondent took reasonable steps to address applicant's concerns about X. Respondent took steps to ensure fair allocation of clients to applicant. Promise to provide copy of draft report into complaints against X not made by respondent. No attempt by manager to influence outcome of inquiry into complaints against X. No evidence applicant required to drive to different city for meeting. Not unreasonable to refuse to hand over copies of handwritten notes of meeting immediately. No evidence applicant suffered ill health or other injury as result of respondent's acts or omissions. No unjustified disadvantage.;PENALTY - GOOD FAITH: Failure to make list of new members available to all fee earners each month ill-judged but not breach of good faith. Failure to provide copy of draft report into complaints against X not breach of good faith. No deceptive or misleading conduct in chief executive's letter to applicant. No breach of good faith. Applicant's EA required any variation to remuneration to be no less favourable rather than any offer made during negotiations about pay. No breach of EA. No penalty.;ARREARS OF WAGES: Commission earned by applicant to be considered in determining whether applicant paid minimum wage. Respondent to pay applicant $348 arrears of wages. |
| Result | Application granted (arrears of wages) ; Arrears of wages ($348.30) ; Applications dismissed (unjustified dismissal)(unjustified disadvantage)(penalty)(good faith) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s4;ERA s4(1A)(b);ERA s4A;ERA s103A;ERA Second Schedule cl10;HSE;Lawyers and Conveyancers (Lawyers: Conduct and Client Care) Rules 2008 r8;Minimum Wage Act 1983;Minimum Wage Act 1983 s6 |
| Cases Cited | Auckland etc Shop Employees etc IUOW v Woolworths (NZ) Ltd (1985) ERNZ Sel Cas 136 ; [1985] 2 NZLR 372;Barry v Anoop Investments Ltd unreported, M Urlich, 18 January 2007, AA11/07;Commissioner of Police v Hawkins [2009] 3 NZLR 381;Law v Board of Trustees of Woodford House (2014) 11 NZELR 355;Lewis v Motorworld Garages Ltd [1986] ICR 157;Para Franchising Ltd v Whyte [2002] 2 ERNZ 120;Review Publishing Co Ltd v Walker [1996] 2 ERNZ 407;Taylor v Milburn Lime Ltd (2011) 9 NZELR 275;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;Weston v Advkit Para Legal Services Ltd (2011) 8 NZELR 604 |
| Number of Pages | 45 |
| PDF File Link: | 2014_NZERA_Auckland_405.pdf [pdf 424 KB] |