| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2015] NZERA Auckland 160 |
| Hearing date | 11 May 2015 |
| Determination date | 08 June 2015 |
| Member | E Robinson |
| Representation | C Mateer ; A Smith |
| Location | Hamilton |
| Parties | Tunnicliffe v Pegasus Stations Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably disadvantaged by respondent’s raising of disciplinary issue concerning applicant’s non-disclosure of relevant medical problems and refusal to allow applicant to withdraw resignation, and unjustifiably dismissed by respondent – Retail frontliner |
| Abstract | AUTHORITY FOUND –UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Applicant put on restricted duties for health and safety reasons, not due to applicant’s non-disclosure of relevant medical information in application form. Respondent should have allowed applicant more time to calm down before asking if applicant wished to withdraw resignation. Applicant unjustifiably disadvantaged by respondent’s acceptance of resignation while applicant upset and not thinking normally. Applicant not unjustifiably disadvantaged by raising of disciplinary issue. Respondent breached good faith by failing to provide all relevant information to applicant at meeting to discuss applicant’s medical situation. Failure to do so not dismissive or repudiatory in nature and other options available to applicant. Breach not serious enough to cause applicant to resign. No dismissal. REMEDIES: $2,000 compensation appropriate. |
| Result | Application granted (unjustified disadvantage) ; Compensation for humiliation etc ($2,000) ; Application dismissed (unjustified dismissal) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103(1)(b) |
| 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 IUOW v Woolworths (NZ) Ltd [1985] 2 NZLR 372 (CA);Bilkey v Imagepac Partners EmpC Auckland AC65/02, 7 October 2000;Boobyer v Good Health Wanganui Ltd EmpC Wellington WEC3/94, 24 February 1994;Harrod v DMG World Media (New Zealand) Ltd [2002] 2 ERNZ 410 (EmpC) ;;Stiffe v Wilson & Horton Ltd EmpC Auckland AC94/00, 5 December 2000;Tranz Rail Ltd v Rail & Museum Transport Union (Inc) [1999] 1 ERNZ 460 (CA);Victoria University of Wellington v Haddon [1996] 2 NZLR 409 (CA);Wellington Area Health Board v Wellington Hotel, Hospital, Restaurant & Related Trades IUOW [1992] 3 NZLR 658 (CA);Wellington, Taranaki and Marlborough Clerical IUOW v Greenwich (t/a Greenwich and Associates Employment Agency and Complete Fitness Centre) [1983] ACJ 965 (AC);Wellington Road Transport IUOW v Fletcher Construction Co Ltd [1983] ACJ 653 (AC) |
| Number of Pages | 23 |
| PDF File Link: | 2015_NZERA_Auckland_160.pdf [pdf 264 KB] |