| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2016] NZERA Auckland 266 |
| Hearing date | 22 & 23 Feb 2016 |
| Determination date | 08 August 2016 |
| Member | Robin Arthur |
| Representation | D Organ; A Schirnack, J Ansell |
| Location | Auckland |
| Parties | Stace v Aurora Law Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably dismissed by respondent – COUNTERCLAIM – BREACH OF CONTRACT – Respondent claimed applicant breached terms of employment agreement (“EA”) – Theft – COUNTERCLAIM – PENALTY – GOOD FAITH – Respondent sought penalty for applicant’s breaches of good faith – Solicitor |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISMISSAL: Respondent’s letter clearly communicated employment relationship had ended. Applicant forced to leave or retire. Applicant’s refusal to participate in disciplinary process and arrangements made to collect personal belongings occurred after employment ended. Respondent did not act as fair and reasonable employer in circumstances. Applicant constructively dismissed. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $60,576 reimbursement of lost wages. $7,000 compensation for humiliation etc appropriate.;COUNTERCLAIM – BREACH OF CONTRACT: Payment of notary membership did not confirm notarial work for financial benefit of respondent. Applicant’s notarial services not part of respondent’s business purchases or duties under EA. Applicant not required to account for notary work fees. Respondent could expect at least two years’ service but not more than three years. No evidence applicant made unreasonable use of internet access. Insufficient evidence that applicant either kept or intended to keep cash received from legal work. No breach of contract.;COUNTERCLAIM – PENALTY – GOOD FAITH: Insufficient evidence for alleged breaches. No penalty. |
| Result | Application granted (unjustified dismissal) ; Reimbursement of lost wages ($60,576) ; Compensation for humiliation etc ($7,000) ; Applications dismissed (counterclaim breach of contract)(counterclaim penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s66;ERA s66(4);ERA s123(1)(b);ERA s123(1)(c)(i);ERA s124;ERA s128;ERA s174E;Lawyers and Conveyancers Act 2006 s6 |
| Cases Cited | Auckland Shop Employees IUOW v Woolworths (NZ) Ltd [1985] 2 NZLR 372 (CA);Buckland v Bournemouth University Higher Education Corp [2010] EWCA Civ 121;Fagotti v Acme & Co Ltd [2015] NZEmpC 135;Fuel Espresso Ltd v Hsieh [2007] NZCA 58, [2007] 2 NZLR 651;New Zealand Professional Firefighters Union v New Zealand Fire Service Commission [2011] NZEmpC 149;PBO Ltd v Da Cruz [2005] 1 ERNZ 808 (EmpC);Telecom New Zealand Ltd v Nutter [2004] 1 ERNZ 315 (CA) |
| Number of Pages | 23 |
| PDF File Link: | 2016_NZERA_Auckland_266.pdf [pdf 317 KB] |