| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 93/04 |
| Hearing date | 18 Mar 2004 - 6 May 2004 (3 days) |
| Determination date | 13 August 2004 |
| Member | H Doyle |
| Representation | D Beck ; J Crichton |
| Location | Christchurch |
| Parties | Aubrey v The Chief Executive of the Department of Child Youth and Family Services |
| Summary | UNJUSTIFIED DISADVANTAGE - Applicant employed in permanent part time position - Initial agreement for increased hours reviewable" after six months - Applicant resigned following meetings to address concerns about hours and disability related issues - "Reviewable" implied more than presentation of reduction of hours as fait accompli - Unjustified disadvantage in relation to process surrounding reduction in hours, lack of assistance for work-related travel, requirement that applicant adhere to strict terms of employment agreement by obtaining licence even though no car available, and failure to provide reassurance concerning funding for car modification - DISCRIMINATION - No discrimination on basis of disability - Process underway to address concerns about co-workers' attitudes circumvented by applicant's resignation - Meeting special needs could have been better handled but no discriminatory motives - UNJUSTIFIED DISMISSAL - Constructive dismissal - Breaches of duty amounting to unjustified disadvantage not main cause of applicant's decision to resign - Resignation not foreseeable - No unjustified dismissal - REMEDIES - Applicant entitled to compensation for humiliation and reimbursement of lost wages for period during which she attempted to resolve matters with respondent with view to returning to work - Social worker" |
| Result | Application granted (Unjustified disadvantage) ; Applications dismissed (Discrimination and unjustified dismissal) ; Reimbursement of lost wages (Quantum to be determined by parties) ; Compensation for humiliation etc ($12,000) ; Costs reserved |
| Statutes | ECA s28;ERA s103(1)(b);ERA s103(1)(c);ERA s104;ERA s104(1);ERA s104(1)(a);ERA s104(1)(b);ERA s105(1)(h);ERA s119;ERA s119(a);ERA s123(b);ERA s123(c)(i);State Sector Act 1988 s56(2)(h);State Sector Act 1988 s58 |
| Cases Cited | Aoraki Corporation Limited v McGavin [1998] 1 ERNZ 601 ; [1998] 3 NZLR 276;Auckland City Council v Hennessey [1982] ACJ 699;Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers IUOW [1994] 1 ERNZ 168 ; [1994] 2 NZLR 415;Auckland & Gisborne Amalgamated Society of Shop Employees and Related Trades etc IUOW v Woolworths (NZ) Ltd [1985] 2 NZLR 372;BP Oil NZ Ltd v Northern Distribution Workers Union [1989] 3 NZLR 580;Chief Executive, Department of Corrections v Harris [2001] ERNZ 426;Kelly v Tranz Rail Ltd [1997] ERNZ 476;New Zealand Workers IUOW v Sarita Farm Partnership [1991] 1 ERNZ 510;Trilford v Car Haulways Ltd [1996] 2 ERNZ 351 |
| Number of Pages | 19 |
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