| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2015] NZERA Wellington 92 |
| Hearing date | 22-May-15 |
| Determination date | 14 September 2015 |
| Member | Michele Ryan |
| Representation | S Rashid ; D McLeod |
| Location | Napier |
| Parties | Britton v Mulching Crushing & Screening Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably dismissed by respondent – PENALTY – Applicant sought penalty for respondent’s failure to provide written employment agreement (“EA”) - Machinery operator |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISMISSAL: Respondent’s text requesting applicant return company vehicle not unequivocal sending away. Text message alone cannot objectively be actual dismissal. Not term of employment that applicant would have unlimited use of vehicle, so request cannot amount to serious breach of EA constituting constructive dismissal. Respondent failed to tell applicant that employment relationship still continued after applicant stated view that he had been dismissed. Failure breached respondent’s duty to be responsive and communicative and not actions of fair and reasonable employer. Omission amounted to constructive dismissal. Dismissal unjustified. REMEDIES: 20 per cent contributory conduct. Respondent to pay applicant $1432 reimbursement of lost wages. $1,000 compensation appropriate.;PENALTY: Respondent accepted failure to provide written EA. Omission inadvertent. No penalty. |
| Result | Application granted (unjustified dismissal) ; Contributory conduct (20%) ; Reimbursement of lost wages ($1432.68) ; Compensation for humiliation etc ($1,000) ; Application dismissed (penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A)(b);ERA s124;ERA s128(2);Holidays Act 2003 s49 |
| Cases Cited | Boobyer v Good Health Wanganui Ltd EmpC Wellington WEC3/94, 24 February 1994;Taylor v Milburn Lime Ltd [2011] NZEmpC 164, (2011) 9 NZELR 275 |
| Number of Pages | 10 |
| PDF File Link: | 2015_NZERA_Wellington_92.pdf [pdf 237 KB] |