| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 107/04 |
| Hearing date | 22 Jul 2003 - 23 Jul 2003 (2 days) |
| Determination date | 31 March 2004 |
| Member | M Urlich |
| Representation | S Mitchell ; R Chan |
| Location | Auckland |
| Parties | MacGilvray v Department of Corrections |
| Summary | UNJUSTIFIED DISMISSAL - Constructive dismissal - Applicant employed by respondent for 15 years as shift worker - New manager appointed - Alleged oral agreement with previous manager that applicant would only work day shift Monday to Friday - New manager believed no contractual entitlement to set pattern of shift work - New roster placed applicant on night shift after complaints about inequitable rosters - Applicant resigned - No course of conduct with purpose of coercing applicant to resign - Evidence established applicant was shift worker - Rostering applicant on nights did not breach terms and conditions of employment - If breach it was not so serious that resignation reasonably foreseeable - Alleged oral agreement only raised once with manager - No communication that if rostered on nights applicant would deem contract repudiated - Resignation without further enquiry precipitous - No constructive dismissal - UNJUSTIFIED DISADVANTAGE - Rostering applicant on nights was unjustified action - Applicant not given opportunity to comment on complaints - Good faith required consultation on decisions directly affecting applicant based on information not known to applicant - Action disadvantaged applicant in employment - Prison nurse |
| Result | Application dismissed (Unjustified dismissal) ; Application granted (Unjustified disadvantage) ; Compensation for humiliation etc ($3,000) ; Costs reserved |
| Statutes | ERA s4(4);ERA s103(b);ERA s122;ERA s123(c)(i);ERA s160 |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers' IUOW [1994] 1 ERNZ 168 ; [1994] 2 NZLR 415;Wellington, Taranaki & Marlborough Clerical etc IUOW v Greenwich (1983) ERNZ Sel Cas 95 |
| Number of Pages | 8 |
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