| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 62/04 |
| Hearing date | 9 Mar 2004 |
| Determination date | 25 May 2004 |
| Member | R A Monaghan |
| Representation | R Wilson ; S Hughes |
| Location | Wellington |
| Parties | Hamblyn v Ngati Ruanui Tahua Society Inc |
| Summary | UNJUSTIFIED DISMISSAL - UNJUSTIFIED DISADVANTAGE - Alleged abandonment of employment - Employment agreement stated where employee absent for continuous period of three working days without consent of employer or without good cause deemed to have abandoned employment - Applicant issued medical certificate stating unfit for work for ten days - Practice manager informed via secretary about medical certificate but not duration - Attempts to contact applicant failed due to cellphone malfunction - Respondent considered applicant's employment terminated under abandonment clause - Whether clause required both continuous absence without employer consent and absence of good cause, or just continuous absence - Court of Appeal authority that even if just continuous absence employer still required to observe obligation of fairness and consider re-employment - Respondent did not have open mind about possibility of good cause for absence and reason for applicant's failure to contact respondent - Tainted by matters not put to applicant - Decision not to re-employ unfairly reached - Termination rather than dismissal - If clause required only continuous absence then unjustified action causing disadvantage - If clause required absence of good cause as well then there was a dismissal which was unjustified - Either unjustified disadvantage or unjustified dismissal - Remedies - Sought loss of benefit of six weeks' paid parental leave - Not possible to say applicant's employment would have continued but for grievance due to poor health during pregnancy and plan to move away - Loss of benefit not awarded - Injury to feelings - Reduction for fact that respondent not at fault for malfunctioning cellphone - Reduction for fact that respondent provided social services and reliant on funding grants for income - Drug, alcohol and tobacco educator |
| Result | Application granted ; Compensation for humiliation, etc ($3,000) ; Costs reserved |
| Statutes | ERA s103(1)(b);Parental Leave and Employment Protection Act 1987 s7;Parental Leave and Employment Protection Act 1987 Part 7A |
| Cases Cited | Pitolua v Auckland City Council Municipal Abattoir [1990] 2 NZILR 589;Pitolua v Auckland City Council Municipal Abattoir [1992] 1 ERNZ 693;EN Ramsbottom Ltd v Chambers [2000] 2 ERNZ 97;Prebble v Coastline FM Ltd [1992] 3 ERNZ 294;Telecom South v Post Office Union [1992] 1 ERNZ 711 |
| Number of Pages | 10 |
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