| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2015] NZERA Christchurch 41 |
| Hearing date | 10 Feb 2015 |
| Determination date | 01 April 2015 |
| Member | H Doyle |
| Representation | J Guthrie ; A Riches |
| Location | Dunedin |
| Parties | Henderson v The Flooring Centre Ltd t/a The Flooring Centre South Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Constructive Dismissal - Dismissal - Applicant claimed unjustifiably dismissed by respondent - Performance concerns - Whether applicant's resignation not valid because required to be in writing under employment agreement (EA") - Attempt to withdraw resignation - Whether applicant dismissed during notice period - PENALTY - GOOD FAITH - Applicant sought penalty for respondent's breach of good faith - COUNTERCLAIM - BREACH OF CONTRACT - Respondent sought damages for applicant's breach of EA - Duty to undertake role with reasonable care and skill - Pricing mistakes - Manager" |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISMISSAL: Parties gave effect to applicant's verbal resignation by advising key staff and addressing workflow issues until date of departure. Resignation intended to be effective when given and not from when resignation placed in writing. No indication that applicant did not intend to resign until 12 or 13 days after resignation given. Parties did not follow form required by EA but nevertheless intended to be bound by agreement entered into. Applicant unable to withdraw resignation without respondent's agreement. Respondent did not have to agree to mediation but should have been active and constructive in hearing and considering applicant's concerns. Respondent did not give sufficient consideration to applicant's view that felt pressured to resign. Respondent did not store up performance concerns to be delivered to applicant all at once. No breach of duty on respondent's part during meeting. Applicant not constructively dismissed. Applicant dismissed during notice period when placed on garden leave and payment in lieu of notice made. Provision in EA allowing for payment in lieu of notice not applicable given parties agreed previously applicant would work until specified date. Fact applicant wanted to retract resignation not substantive justification for dismissal. No fair process or compliance with good faith obligations by respondent. No consultation with applicant about health. Dismissal unjustified. REMEDIES: No contributory conduct. $10,000 compensation appropriate.;PENALTY - GOOD FAITH: Respondent breached good faith during notice period. Failure to respond to applicant's concerns sustained and serious but could have been based on genuine belief in legal position that nothing further required. No penalty.;COUNTERCLAIM - BREACH OF CONTRACT: Respondent unable to show that applicant breached duty in some cases, or that applicant liable for any loss in other cases. No damages. |
| Result | Application granted (unjustified dismissal) ; Compensation for humiliation etc ($10,000) ; Applications dismissed (penalty - good faith)(counterclaim - breach of contract) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA;ERA s3;ERA s4;ERA s4(1A)(b);ERA s4A;ERA s103A;ERA s103A(3)(a);ERA s103A(3)(b);ERA s103A(3)(c);ERA s103A(3)(d) |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers Industrial Union of Workers (Inc) [1994] 2 NZLR 415 (CA);Auckland Shop Employees Union v Woolworths (NZ) Ltd [1985] 2 NZLR 372 (CA);George v Auckland Council [2013] NZEmpC 179, [2013] ERNZ 675;Katz v Mana Coach Services Ltd [2011] NZCA 610, [2011] ERNZ 186;Lister v Romford Ice and Cold Storgae Co Ltd [1957] AC 555 (HL);Masonry Design Solutions v Bettany (2009) 6 NZELR 834 (EmpC);Taylor v Milburn Lime Ltd [2011] NZEmpC 164, (2011) 9 NZELR 275 |
| Number of Pages | 31 |
| PDF File Link: | 2015_NZERA_Christchurch_41.pdf [pdf 317 KB] |