| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2016] NZERA Auckland 375 |
| Hearing date | 10-Nov-16 |
| Determination date | 16 November 2016 |
| Member | T Tetitaha |
| Representation | K Fayen ; P Hodge |
| Location | Auckland |
| Parties | Alvey v Manukau Auto Centre Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL – Constructive Dismissal – Applicant claimed unjustifiably disadvantaged by requirement to source own clients and instruction to stay away from work - Applicant claimed unjustifiably dismissed by respondent – COSTS – Applicant sought contribution to costs – Machine painter |
| Abstract | AUTHORITY FOUND –UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL: No evidence that applicant required to source own clients. Applicant told to stay away from work on weekends but applicant still worked more than 40 hours per week on average and employment agreement did not require applicant to work on weekends. No unjustified disadvantage. Respondent initiated dismissal by asking for applicant’s resignation. Applicant given choice between resigning and being dismissed. Applicant constructively dismissed. Dismissal unjustified. REMEDIES: 25 per cent contributory conduct. Respondent to pay applicant $1,312 reimbursement of lost wages. $750 compensation appropriate.COSTS: Half day investigation meeting. Appropriate to reduce notional daily tariff to reflect partial success. Respondent to pay applicant $875 contribution to costs. |
| Result | Application granted (unjustified dismissal) ; Contributory conduct (25%) ; Reimbursement of lost wages ($1,312) ; Compensation for humiliation etc ($750) ; Application dismissed (unjustified disadvantage) ; Costs in favour of applicant ($875) |
| Main Category | Personal Grievance |
| Statutes | ERA s124 ; ERA s128 |
| Cases Cited | Auckland Shop Employees IUOW v Woolworths (NZ) Ltd [1985] 2 NZLR 372 (CA) ; NID Distribution Workers etc IUOW v Foodtown Supermarkets Ltd [1988] NZILR 588 (LC) |
| Number of Pages | 6 |
| PDF File Link: | 2016_NZERA_Auckland_375.pdf [pdf 234 KB] |