| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2015] NZERA Christchurch 206 |
| Hearing date | 13 - 14 Aug 2015 (2 days) |
| Determination date | 23 December 2015 |
| Member | Christine Hickey |
| Representation | M Beech ; S Wilson |
| Location | Christchurch |
| Parties | Adams v Enable Roofing Ltd |
| Other Parties | J Dickson |
| Summary | JURISDICTION – Whether applicant employee or contractor – UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably disadvantaged by written warning, disciplinary process, failure to investigate claims of stress and failure to investigate potential disclosure of outcome of process – Applicant claimed unjustifiably dismissed by respondent – Roofer |
| Abstract | AUTHORITY FOUND –;JURISDICTION: Applicant signed employment agreement and other contract envisaging applicant as employee. Applicant employee.;UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Respondent breached good faith by making comments that contract between parties not parties not binding and applicant replaceable. Respondent did not follow own disciplinary process in implementing written warning, pre-determined outcome of process and took irrelevant considerations into account. Applicant’s conduct in not obeying lawful and reasonable instruction simple misconduct only. Applicant unjustifiably disadvantaged by imposition of final written warning. Respondent also carried out disciplinary process for failure to work agreed hours with the same flaws. Respondent unreasonably failed to investigate applicant’s claims of stress before making decision about misconduct. Respondent failed to investigate why outsiders knew of disciplinary process. Applicant unjustifiably disadvantaged. Respondent’s comments also in breach of good faith towards applicant. Cumulative effect of respondent’s breaches of good faith and actions serious enough to destroy applicant’s trust and confidence in respondent. Resignation reasonably foreseeable by respondent. Applicant constructively dismissed. Applicant unjustifiably dismissed. REMEDIES: No contributory conduct. Respondent to pay applicant reimbursement of lost wages, quantum to be determined. $17,500 compensation appropriate. |
| Result | Applications granted (unjustified dismissal)(arrears of wages) ; Reimbursement of lost wages (quantum to be determined) ; Compensation for humiliation etc ($17,500) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s103A;ERA s103A(3);ERA s123(1)(b);ERA s123(1)(c)(i);ERA s124;ERA s128(2);ERA s128(3);ERA s135(5);Legal Services Act 2011 s45;Legal Services Act 2011 s46 |
| Cases Cited | Auckland Shop Employees IUOW v Woolworths (NZ) Ltd [1985] 2 NZLR 372 (CA);Review Publishing Co Ltd v Walker [1996] 2 ERNZ 407 (EmpC);Weston v Advkit Para Legal Services Ltd [2010] NZEmpC 140, (2011) 8 NZELR 604;Hall v Dionex Pty Ltd [2015] NZEmpC 29, (2015) 10 NZELC 79-051;Sam's Fukuyama Food Services Ltd v Zhang [2011] NZCA 608, [2011] ERNZ 482;Jinkinson v Oceana Gold (NZ) Ltd [2011] NZEmpC 2 |
| Number of Pages | 38 |
| PDF File Link: | 2015_NZERA_Christchurch_206.pdf [pdf 397 KB] |