| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2017] NZERA Auckland 52 |
| Hearing date | 23-Jan-17 |
| Determination date | 28 February 2017 |
| Member | R Larmer |
| Representation | A Halse ; S Grice |
| Parties | T v K |
| Summary | UNJUSTIFIED DISMISSAL - Dismissal - Applicant claimed unjustifiably dismissed by respondent - Applicant left work after bullying by manager - Applicant treated as resigning when not accepting return to work proposal |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISMISSAL: Authority ordered non-publication of parties’ names. Return to work proposal was actually settlement proposal whereby applicant gave up legal claims. Applicant did not genuinely or voluntarily resign. Initiative for ending employment came from respondent. No common law or contractual right for respondent to unilaterally decide that if applicant did not accept settlement proposal she would be deemed to have resigned. Applicant did not repudiate or frustrate employment agreement by asking respondent to engage with her before returning to work because of bullying concerns. Applicant dismissed. Dismissal procedurally unfair. Failure to provide applicant with relevant information breach of good faith. Serious omission for respondent to fail to attempt to repair problems between staff. Dismissal unjustified. REMEDIES: No contributory conduct. Applicant mitigated loss. Respondent to pay applicant reimbursement of lost wages, quantum to be determined. $15,000 compensation appropriate. |
| Result | Application granted ; Reimbursement of lost wages (quantum to be determined) ; Compensation for humiliation etc ($15,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1)(a) ; ERA s103A(2) ; ERA s103A(3) ; ERA s103A(3)(a) ; ERA s103A(3)(b) ; ERA s103A(3)(c) ; ERA s103A(3)(d) ; ERA s124 ; ERA s149 |
| Cases Cited | Xtreme Dining Ltd v Dewar [2016] NZEmpC 136, (2016) 10 NZELC 79-069 |
| Number of Pages | 20 |
| PDF File Link: | 2017_NZERA_Auckland_52_amended.pdf [pdf 224 KB] |