| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2015] NZERA Christchurch 62 |
| Hearing date | 11 Mar 2015 - 12 Mar 2015 (2 days) |
| Determination date | 13 May 2015 |
| Member | Christine Hickey |
| Representation | S Graham ; J Shingleton |
| Location | Christchurch |
| Parties | Jones v GBC South Island Ltd |
| Summary | RAISING PERSONAL GRIEVANCE –Whether grievance raised within 90 days – Whether respondent consented to applicant raising grievance out of time – UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably disadvantaged by respondent – Failure to provide safe workplace - Applicant claimed he suffered workplace injuries from moving heavy objects - No written health and safety policy - Whether respondent disadvantaged applicant through bullying, threats and abuse – Applicant claimed unjustifiably dismissed by respondent – Bullying - Unilateral change of duties– Applicant did not have enough work to fill applicant’s role - Saw-man |
| Abstract | AUTHORITY FOUND –RAISING PERSONAL GRIEVANCE: KiwiSaver grievance not raised within 90 days. Other grievances not raised within 90 days. Respondent did not raise issue of late raising of grievance until after investigation meeting. Respondent impliedly consented to grievance being raised outside 90 days by allowing proceedings to go ahead. Application to raise grievance out of time granted.UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL: Applicant did not show evidence of having suffered workplace injury or aggravation of pre-existing injury. Applicant did not report any workplace injuries to respondent while employed. Respondent did not have inadequate ways of dealing with moving heavy objects. Lack of written health and safety policy did not disadvantage applicant. Respondent’s shareholders did not threaten or bully applicant. Some unideal conduct from respondent’s shareholders not amounting to repudiatory conduct. No unjustified disadvantage. Conduct of shareholders did not amount to course of conduct intended to coerce applicant to resign. Respondent did unilaterally and substantially change applicant’s duties without consultation with applicant. Change serious enough to make resignation foreseeable and amount to repudiation of employment agreement. Neither party raised concerns about relationship in good faith. Applicant constructively dismissed. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $6,210 reimbursement of lost wages. $3,000 compensation appropriate. |
| Result | Application granted (unjustified dismissal) ; Reimbursement of lost wages ($6,210) ; Compensation for humiliation etc. ($3,000) ; Application partially granted (raising personal grievance) ; Applications dismissed (unjustified disadvantage) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s114;ERA s114(1);ERA s124;ERA s128(2);KiwiSaver Act 2006 |
| Cases Cited | Auckland Electric Power Board v Auckland Local Authorities Officers IUOW [1994] 2 NZLR 415 (CA);Auckland Shop Employees etc IUOW v Woolworths (NZ) Ltd [1985] 2 NZLR 372 (CA);Commissioner of Police v Hawkins [2009] NZCA 209, [2009] 3 NZLR 381;Review Publishing Company Ltd v Walker [1996] 2 ERNZ 407 (EmpC);Wellington, Taranaki and Marlborough Clerical Administration and Related Workers IUOW v Greenwich t/a Becket Employment [1983] ACJ 965 (AC) |
| Number of Pages | 21 |
| PDF File Link: | 2015_NZERA_Christchurch_62.pdf [pdf 307 KB] |