| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 173/04 |
| Hearing date | 16 Oct 2003 - 13 Nov 2003 (4 days) |
| Determination date | 14 May 2004 |
| Member | R A Monaghan |
| Representation | C Eggleston ; C Patterson |
| Location | Auckland |
| Parties | Barry and Anor v Advanced Hair Studio Pty Ltdz and Anor |
| Other Parties | Advanced Hair Studio Pty Ltd, Barry |
| Summary | UNJUSTIFIED DISADVANTAGE - Suspension - Two suspensions - No provision in employment agreement for suspension - Suspension on pay to investigate allegation applicant had met with former employee setting up competing business - Suspension unjustified and unnecessary as applicant on sick leave - No disadvantage caused - Suspension without pay when applicant refused to attend meeting without being provided information - If correct that suspension can only be imposed if authorised by contract or statute then suspension was in breach of employment agreement - Instruction to attend meeting lawful and refusal to do so culpable but consequences of non-attendance not made clear - No opportunity to comment on suspension - Suspension unjustified - Entitled to remuneration lost as result of suspension - UNJUSTIFIED DISMISSAL - Constructive dismissal - Resigned after two suspensions - Suspensions did not amount to sufficiently serious breaches - Applicant acted pre-emptively - No unjustified dismissal - BREACH OF CONTRACT - Applicant owed duty of fidelity - Active dialogue with competitor, advising clients of new business and soliciting fellow employee to work in new business were activities incompatible with duty not to undermine relationship of trust and confidence - Applicant's failure to return certain items could have been breach of confidentiality but respondent's failure to ask for their return lessened breach - Failure to provide notice of termination breached employment agreement - No evidence of any losses suffered by respondent - PENALTY - Penalty for failure to provide certain terms of employment in writing - Other penalty claims out of time - PRACTICE AND PROCEDURE - Application for leave to file complaint with police regarding applicant's possession of computer relying on evidence in association with execution of Anton Piller order - Privilege against self-incrimination - Not persuaded to grant leave - Hair replacement studio manager |
| Result | Application granted (Unjustified disadvantage) ; Application dismissed (Unjustified dismissal) ; Application granted (Breach of contract) ; Reimbursement of lost wages (From last date paid to date of resignation) ; Compensation for humiliation, etc ($1,000) ; Penalty in favour of Crown ($500) ; Costs reserved |
| Statutes | ERA s64(2);ERA s64(3);ERA s65;ERA s133;ERA s135(5) |
| Cases Cited | Advanced Hair Studio Ltd v Barry unreported, A Dumbleton, 5 June 2003, AA 165/03;ASTE v Northland Polytechnic Council [1992] 2 ERNZ 943;Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers IUOW [1994] 1 ERNZ 168; [1994] 2 NZLR 415;Big Save Furniture v Bridge [1994] 2 ERNZ 507;Busby v Thorn EMI Video Programmes Ltd [1984] 1 NZLR 461;Canterbury Rubber Workers' Union v Dunlop NZ Ltd [1983] ACJ 367;Doherty Trading Ltd v Ferris [1999] 2 ERNZ 776;Excell Corporation Ltd v Stephens [2003] 1 ERNZ 568;Gray v Nelson Methodist Presbyterian Hospital Chaplaincy Committee [1995] 1 ERNZ 672;Korbond Industries Ltd v Jenkins [1992] 1 ERNZ 1141;Rank Film Distributors Ltd v Video Information Centre [1982] AC 380;Schilling v Kidd Garrett Ltd [1977] 1 NZLR 243;Tawhiwhirangi v Attorney General in respect of Chief Executive Department of Justice [1993] 2 ERNZ 546;The Distillers Co (Biochemicals) Ltd v Times Newspapers Ltd [1975] 1 All ER 41;Tisco Ltd v Communication and Energy Workers Union [1993] 2 ERNZ 779;Walden v Barrance [1996] 2 ERNZ 598 |
| Number of Pages | 22 |
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