| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2015] NZERA Christchurch 161 |
| Hearing date | 16-Sep-15 |
| Determination date | 29 October 2015 |
| Member | David Appleton |
| Representation | L Acland ; A Sharma |
| Location | Nelson |
| Parties | Bauer v Tozzetti 2014 Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably disadvantaged by respondent’s change in applicant’s duties and hours and respondent sending applicant home before end of shift – Applicant claimed unjustifiably dismissed by respondent – Bakery manager |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Respondent varied applicant’s duties without written agreement as required by employment agreement (“EA”). Not reasonable for respondent to vary duties due to performance concerns without giving applicant chance to improve. No change in hours amounting to unjustified disadvantage. Respondent sending applicant home early caused her to lose out on pay and so constituted unjustifiably disadvantaged. Applicant unjustifiably disadvantaged by early end to shifts and unilateral change in duties. Respondent fundamentally breached EA by proposing to unilaterally reduce applicant’s pay. Applicant accepted repudiation by resigning. Breach serious enough that applicant’s resignation reasonably foreseeable. Applicant dismissed by respondent. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $8,346 reimbursement of lost wages and $668 reimbursement of lost holiday pay. $10,000 compensation appropriate. |
| Result | Applications granted ; Reimbursement of lost wages ($8,436.90) ; Reimbursement of lost holiday pay ($668.55) ; Compensation for humiliation etc. ($10,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103(1)(a);ERA s103(1)(b);ERA s103A;ERA s128;ERA Second Schedule cl11;Social Security Act 1964 s71 |
| 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);James and Co Ltd v Hughes [1995] 2 ERNZ 432 (EmpC);McIvor v Saad [2015] NZEmpC 145 |
| Number of Pages | 22 |
| PDF File Link: | 2015_NZERA_Christchurch_161.pdf [pdf 242 KB] |