| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2015] NZERA Christchurch 203 |
| Hearing date | 6-Oct-15 |
| Determination date | 21 December 2015 |
| Member | Christine Hickey |
| Representation | M McDonald ; D Jackson |
| Location | Oamaru |
| Parties | Burgess v L & S Bartley Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISSMISSAL – Constructive Dismissal – Applicant claimed unjustifiably disadvantaged by unilateral changes to employment, being placed on special leave, and advertising same job while still employed – Applicant claimed constructively dismissed by respondent – COUNTERCLAIM – RECOVERY OF MONIES – Respondent sought recovery of wages overpaid to applicant – Farm assistant |
| Abstract | AUTHORITY FOUND –;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Respondent not active or constructive in maintaining productive employment relationship. Respondent did not investigate concerns, or allow reasonable opportunity for applicant to respond to unilateral change of location and hours. Respondent did not act as fair and reasonable employer by employing new staff without explanation. Applicant unjustifiably disadvantaged by pay cut, unilateral work changes, and lack of communication. Cumulative effect of respondent’s breaches of good faith serious enough to destroy trust and confidence. Applicant’s resignation reasonably foreseeable by respondent. Applicant constructively dismissed. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $5,372 reimbursement of lost wages. $10,000 compensation appropriate.;COUNTERCLAIM – RECOVERY OF MONIES: Respondent’s decision to put applicant on special leave not asked for. Circumstances not equitable for repayment to respondent. No recovery of monies. |
| Result | Applications granted (unjustified disadvantage)(unjustified dismissal) ; Reimbursement of lost wages ($5,372.25) ; Compensation for humiliation etc ($10,000) ; Compensation for loss of benefit ($161.17) ; Application dismissed (counterclaim – recovery of moneys) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s103A;ERA s103A(3);ERA s123(1)(b);ERA s124;ERA s128(2);ERA s174E(b) |
| Cases Cited | Auckland Shop Employees IUOW v Woolworths (NZ) Ltd [1985] 2 NZLR 372 (CA), (1985) ERNZ Sel Cas 136;Review Publishing Co Ltd v Walker [1996] 2 ERNZ 407 (EmpC), (1996) 5 NZELC 98;Weston v Advkit Para Legal Services Ltd [2010] NZEmpC 140, (2011) 8 NZELR 604 |
| Number of Pages | 19 |
| PDF File Link: | 2015_NZERA_Christchurch_203.pdf [pdf 241 KB] |