| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 83/05 |
| Hearing date | 4 Nov 2004 |
| Determination date | 03 June 2005 |
| Member | P Montgomery |
| Representation | C Smith, G Pollak |
| Location | Christchurch |
| Parties | Officer v Mainland Products Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Constructive dismissal - Applicant resigned but would have otherwise been dismissed - Applicant compiled a call cycle/run list for visits to major customers - Labelled proposed run list" - One store manager complained that was not seeing applicant frequently enough and later said applicant no longer wanted in store - Three months later manager told applicant about store managers comments - Invited to attend meeting with "any person of your choice" rather than advising representation as set out in disciplinary manual - Attended disciplinary meeting with partner - Respondent assumed applicant's partner was her lawyer - Applicant resigned at later meeting - Whether call cycle proposed or agreed on - Perceived differently by each party - Onus on respondent if it were to demand rigid adherence to formally advise that was a contractual term - Call cycle flexible but applicant had never been informed as to how that flexibility was to be applied - Intervention by manager unduly delayed - If he had acted promptly it was likely situation would not have occurred - Issue at beginning of investigation was potential serious misconduct - Respondent failed to follow correct course of action in addressing a performance related issue - Applicant not suspended to allow full investigation as in line with employment agreement - Process of investigation not full and therefore not fair - Not accepted that a fair and reasonable employer could have dismissed applicant on an issue of performance without invoking the procedures set out in the respondent's disciplinary manual - Unjustified constructive dismissal - Remedies - Delay in lodging application - No response sent to respondent's letters seeking prompt resolution - Intention of applicant was to proceed promptly but was prevented by straightened financial circumstances and low mood associated with termination of employment - Reinstatement ordered - Key account representative" |
| Result | Application granted ; Reimbursement of lost wages ($20,000) ; Compensation for hurt and humiliation etc and loss of use of company vehicle ($10,000) ; Reinstatement ; Costs reserved |
| Statutes | ERA s125 |
| Cases Cited | Ashton v Shoreline Hotel [1994] 1 ERNZ 421;Auckland etc Shop Employees etc IUOW v Woolworths (NZ) Ltd [1985] ACJ 963;Clarke v Norske Skog Tasman Ltd [2003] 2 ERNZ 213;Weir v Fuji Xerox NZ Ltd [1998] 1 ERNZ 140 |
| Number of Pages | 10 |
| PDF File Link: | ca 83_05.pdf [pdf 58 KB] |