| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 455/05 |
| Hearing date | 2 Nov 2005 |
| Determination date | 30 November 2005 |
| Member | J Scott |
| Representation | D Erickson ; R Harrison |
| Location | Auckland |
| Parties | Sampson v Bridgestone New Zealand Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Constructive dismissal - Applicant retired - Had discussed possible retirement with respondent - Were performance issues - Possible training discussed - Applicant submitted notice of intention to retire - Later alleged had been coerced into notifying retirement date and changed intended termination date - Meeting with applicant to discuss issues - Following meeting, new notice confirming retirement given and applicant duly retired, with retirement being marked by social function - Where evidence in dispute, that of respondent's witnesses preferred - Applicant saw training proposal as slippery slope to dismissal for poor performance - Nothing said or done by respondent responsible for that dramatic conclusion - Proposal for training not used as threat to extract retirement date from applicant - Applicant turned down approach from respondent that he continue his employment because respondent had not found a replacement for him - Respondent entitled to implement training/skills development programme - Also open to respondent to have frank and open discussion with applicant about retirement plans - No constitutive dismissal - If wrong in findings also concluded that was inconsistent with principle of good faith and mutual trust and confidence for employee to store up grievances with view to smiting employer with them months after event - If was any breach then would have found applicant affirmed contract knowing of breach - Delay in terminating relationship in reliance on breaches fatal - UNJUSTIFIED DISADVANTAGE - Unjustified disadvantage claim made - Distinction between this claim and constructive dismissal one artificial since claims relied to large extent on same alleged breaches of duty - Matter addressed as constructive dismissal claim - Sales representative |
| Result | Application dismissed ; Costs reserved |
| Cases Cited | Auckland etc Shop Employees etc IUOW v Woolworths (NZ) Ltd [1985] ACJ 963;Donaldson and Youngman t/a Law Courts Hotel v Dickson [1994] 1 ERNZ 920;NZ Amalgamated Engineering etc IUOW v Ritchies Transport Holdings Limited [1991] 2 ERNZ 267;Para Franchising Ltd v Whyte [2002] 2 ERNZ 120;Trotter v Telecom Corporation of NZ Ltd [1993] 2 ERNZ 659;Wellington Clerical Workers' Union v Barraud & Abraham Ltd [1970] 70 BA 347;Western Excavating Ltd v Sharp [1978] 1 All ER 713 |
| Number of Pages | 7 |
| PDF File Link: | aa 455_05.pdf [pdf 39 KB] |