| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2015] NZERA Christchurch 166 |
| Hearing date | 20-Oct-15 - 22-Oct-15 (3 days) |
| Determination date | 03 November 2015 |
| Member | David Appleton |
| Representation | A Sharma ; P McBride |
| Location | Nelson |
| Parties | Henderson v Nelson Marlborough District Health Board |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably disadvantaged by performance development process and unjustifiably dismissed by respondent – PENALTY – GOOD FAITH – Applicant sought penalties for respondent’s breach of contract and good faith – Director of Nursing |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Order for non-publication of identifying information of witness. Respondent mixed up performance development process and disciplinary process in trying to improve applicant’s performance. Process not fair or transparent. Fair and reasonable employer would have provided applicant with specific details of concerns and started formal disciplinary process if necessary. Applicant unjustifiably disadvantaged. Respondent did not deliberately set out to make applicant resign but breach serious enough to repudiate employment agreement. Reasonably foreseeably that applicant would resign as result of process. Applicant failed to tell respondent about belief in breach and so breached duty of good faith herself. Good faith required applicant to unambiguously state belief in repudiation. Applicant affirmed employment agreement as result. No dismissal. REMEDIES: No contributory conduct. $15,000 compensation appropriate.;PENALTY: Applicant failed to commence one claim for penalty for breach of contract within 12 months. No breach of contract for other breach of contract penalty claims. Employer did not act deliberately or maliciously, so no breach of good faith. No penalty. |
| Result | Application granted (unjustified disadvantage) ; Compensation for humiliation etc ($15,000) ; Applications dismissed (penalty)(unjustified dismissal) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A)(b);ERA s4A;ERA s4A(a);ERA s4A(b);ERA s4A(c);ERA s103A;ERA s124;ERA s134;ERA s135(5) |
| 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);Cantor Fitzgerald International v Callaghan [1999] All ER 41 (EWCA);Premier Events Group Ltd v Beattie [2014] NZEmpC 231;WE Cox Turner (International) Ltd v Crook [1981] ICR 832 (EAT) |
| Number of Pages | 37 |
| PDF File Link: | 2015_NZERA_Christchurch_166.pdf [pdf 320 KB] |