| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 478/05 |
| Hearing date | 30 Nov 2005 |
| Determination date | 12 December 2005 |
| Member | J Scott |
| Representation | I Smith (in person) ; R Harrison |
| Location | Auckland |
| Parties | Smith v Young Mens Christian Association of Auckland Inc |
| Summary | UNJUSTIFIED DISMISSAL - Constructive dismissal - Applicant previously employed in position by another employer - On first day of work with new employer resigned after three events occurred - First was approach by new duty manager who, allegedly without saying first who she was, asked applicant if she was testing the pool - Allegedly duty manager then explained that things were going to change now the respondent had taken over - Second event was when a lifeguard arrived late to work and duty manger asked him why he was late interrupting applicant who was about to do so - Third incident was duty manager allegedly speaking to applicant in insulting and domineering manner when questioning about cleaning duties - That afternoon applicant verbally resigned - Respondent tried to get applicant to change mind three times, including offering her alternative employment - Applicant failed to establish repudiatory conduct by respondent that entitled her to terminate employment and succeed in claim of constructive dismissal - Evidence pointed to situation of new management feeling its way - Duty manager was at worst business like in her discussions with applicant - Nothing intimidatory, insulting or oppressive in duty manager's manner - Strenuous efforts made by respondent to have applicant change her mind - No constructive dismissal - Even if constructive dismissal unlikely applicant would have been awarded lost remuneration since she did not mitigate her loss but took time out to assist her daughter who was having a baby and then had operations on her foot and was unavailable for work for some time - COSTS - ï¾½ day investigation meeting - Applicant to pay respondent $750 costs - Senior lifeguard |
| Result | Application dismissed ; Costs in favour of respondent ($750) |
| Cases Cited | Auckland Electric Power Board v Auckland Local Authorities Officers Union [1994] 1 ERNZ 168 ; [1994] 2 NZLR 415;Auckland Shop Employees IUOW v Woolworths (NZ) Ltd [1985] ACJ 963;NZ Amalgamated Engineering etc IUOW v Ritchies Transport Holdings Limited [1991] 2 ERNZ 267;NZ Woollen Workers IUOW v Distinctive Knitwear NZ Ltd [1990] 2 NZILR 438;Para Franchising Ltd v Whyte [2002] 2 ERNZ 120;Wellington Clerical Workers' Union v Barraud & Abraham Ltd [1970] 70 BA 347;Wellington etc Clerical Workers IUOW v Greenwich [1983] ACJ 965;Western Excavating Ltd v Sharp [1978] 1 All ER 713 |
| Number of Pages | 6 |
| PDF File Link: | aa 478_05.pdf [pdf 35 KB] |