| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 109/04 |
| Hearing date | 2 Aug 2004 - 3 Aug 2004 (2 days) |
| Determination date | 17 August 2004 |
| Member | G J Wood |
| Representation | S Dalzell ; J Cain |
| Location | Napier |
| Parties | Miles v Richmond Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Constructive dismissal - Respondent sought to improve health and safety processes - One death and later one serious accident occurred at plant where applicant was manager - Applicant suspended - Respondent alleged had been insufficient health and safety progress between two incidents - Suspension procedurally and substantively unjustified - Unjustified suspension - Applicant accepted new job and told respondent employment agreement repudiated and alleged constructive dismissal - Suspension and aftermath constituted breach of duties of sufficient seriousness that resignation was reasonably foreseeable - Constructive dismissal - Applicant's claims for breach of contract not addressed since subsumed in personal grievance claims and could be no double recovery - Remedies - No ability to compensate for income lost by applicant's wife as result of moving town - No award made for removal expenses - Counterclaim - Respondent's consultant told applicant if he withdrew claims respondent would not pursue counterclaims - Applicant believed threat of counterclaim being used as leverage - Respondent sought damages for breach of contract for failure to properly implement health and safety procedures - Applicant's actions not breach of contract - Also sought damages for failure to give notice - No failure to give notice since constructive dismissal - Counterclaims dismissed - Counterclaim being used as leverage taken into account in compensation awarded - Other aspects of counterclaim would be dealt with in costs - Manager |
| Result | Application granted ; Compensation for humiliation etc ($20,000) ; Costs reserved |
| Cases Cited | ASTE v Northland Polytechnic Council [1992] 2 ERNZ 943;Coburn v Mitchell & Mackersy unreported, Palmer J, 27 January 1998, CEC 2/98;Western Mailing v Subritzky [2003] 2 ERNZ 465 |
| Number of Pages | 13 |
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