| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 4/01 |
| Hearing date | 22 Feb 2001 |
| Determination date | 27 February 2001 |
| Member | P R Stapp |
| Representation | M Austen ; M Lawlor |
| Location | Wellington |
| Parties | Easterbrook v Cycle & Carriage (City) Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Constructive dismissal - Alleged racial and sexual discrimination - Whether failed to promote due to race and sex - Credibility - Conflicting evidence - Applicant's account more probable - Appointments were management prerogative - Not unfettered right - Loss of opportunity - Resignation reasonably foreseeable - New vehicle sales person |
| Abstract | This was a successful unjustified dismissal claim investigated by the Employment Relations Authority.;The applicant was employed by the respondent as a new vehicle sales person. The respondent obtained a franchise to sell cars at the top end" of the sports and luxury car market. A person needed to be appointed in a dedicated position in the franchise and a decision was made to appoint an existing salesperson of the respondent. It was decided that only two current employees could be considered, the applicant and another sales person, Mr Lai.;Mr Lai was offered the position and the same day the applicant was told of the opportunity and the appointment of Mr Lai. The applicant did not know about the position until she was told of Mr Lai's appointment. The applicant alleged (and the respondent disputed) the respondent's Dealer Principal told her the reason for the decision was that "an Asian would be better suited to the role" and that "she would not be taken seriously as she was a woman". The following day the applicant resigned.;HELD: (1) The right to make variations or appointments and promotions as part of the management prerogative was not unfettered. The employer must take into account contractual obligations including trust and confidence and good faith (s4 ERA).;(2) The law required an examination of the respondent's state of mind and motivation. It also required proof of a causal connection between the alleged discrimination and the "dismissal". That is the reason "but for" which "the dismissal" was unlikely to have happened.;(3) The applicant's version of events was more probable as she got upset about the decision and the reasons given to her. Other reasons the applicant's evidence was preferred included the fact that she was clear and direct in her recollection of the evidence and that she was not informed of the opportunity of the appointment. The respondent's position was not convincing, therefore it was more probable that reference was made about Mr Lai being Asian to suit the role and that as a woman the applicant would not be taken seriously by others.;(4) The respondent's actions constituted grounds for discrimination and were reason enough for the applicant to lose trust and confidence in her employer. This was compounded by the respondent's decision not to let the applicant have an involvement in the process. Overall it was sufficient to constituted a constructive dismissal." |
| Result | Application granted ; Compensation for humiliation etc ($15,000) ; Costs reserved |
| Statutes | ERA s4;ERA s104(1);ERA s105 |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers IUOW [1994] 1 ERNZ 168; [1994] 2 NZLR 415 (CA);Auckland etc Shop Employees etc IUOW v Woolworths (NZ) Ltd [1985] ACJ 963 ; [1985] 2 NZLR 372 (CA);Kelly v Tranz Rail Ltd [1997] ERNZ 476;NZ Workers IUOW v Sarita Farm Partnership [1991] 1 ERNZ 510;Post Office Union (Inc) v Telecom (Wellington) Ltd [1989] 3 NZILR 527;Review Publishing Ltd v Walker [1996] 2 ERNZ 407;RMS Shopfitters Ltd v Baldwin [1998] 2 ERNZ 387;Trilford v Car Haulaways Ltd [1996] 2 ERNZ 351 |
| Number of Pages | 9 |
| PDF File Link: | PDF file not available for download, please contact us to request a copy. |