| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 59/06 |
| Hearing date | 14 Nov 2005 - 15 Nov 2005 (2 days) |
| Determination date | 02 March 2006 |
| Member | R A Monaghan |
| Representation | L Emmerson ; S Ferial Yasmin |
| Location | Auckland |
| Parties | Carey and Anor v Uno Where Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Constructive dismissal - Applicants resigned after alleged accumulation of stress and mismanagement by respondent - Early and ongoing disputes between parties - Problem with flow of financial information from both sides - Problems with suppliers due to inefficient system - Issue over placement of bar stools - Applicants complained to OSH about slippery mat and sunstrike - OSH concluded matters not significant and could have been easily addressed - Director sought disciplinary meeting - Applicants took sick leave - Respondent complained to Police that applicants had some company property - Police search of applicants' home found none of the missing property - Applicants resigned - Although hours worked were long, evidence about hours of work was too vague to support finding that they were required to work excessive hours - No breach of duty in relation to hours - Was a breach of duty in that respondent led applicants to believe they would have degree of managerial freedom which they did not have - Unjustified constructive dismissal - Remedies - Contributory conduct taken into account in awarding lost remuneration - No award for compensation - COUNTERCLAIM - BREACH OF CONTRACT - Note on restaurant explaining that was shut because of stress-related illness provided customers with more information than necessary but not breach of duty of fidelity - Had been some delays in provision of information but that was taken account in assessing remedies - Complaint to OSH not bad faith - Alleged owed monies for failure to give two weeks notice - Applicants left employment at respondents' initiative so no breach of notice provision - Applicants set up pizzeria after left respondent - No relevant restraint of trade provision - Applicants entitled to set up own business - No evidence they attempted to do so or otherwise breached obligations before employment ended - No breach of duty of fidelity - Whether information applicants used in new business was confidential information belonging to respondent - Menus of a common type - Not confidential information - Information on CD about business did not have necessary quality of confidentiality - No liability established regarding damage to wall - No evidence that missing CDs were in applicants' possession - No breach of agreement regarding alleged loss of profits over Christmas-New Year period - UNJUSTIFIED DISADVANTAGE - Claim relied on same matters as in constructive dismissal claim - No need to take them any further - ARREARS OF HOLIDAY PAY - No holiday pay paid to either applicant - Monies due and owing - Leave reserved to have amounts alleged by applicants corrected if necessary - Length of service 5ï¾½ months - Chef/manager |
| Result | Application granted (Unjustified dismissal) ; Reimbursement of lost wages ($1,524)(2 weeks)(CS) ; ($2,000)(4 weeks)(DC) ; Application dismissed (Unjustified disadvantage) ; Arrears of holiday pay ($914.40)(CS) ; ($600)(DC) ; Counterclaim dismissed ; Costs reserved |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers IUOW (Inc) [1994] 1 ERNZ 168;New Zealand Institute of Fashion Technology v Aitken [2004] 2 ERNZ 340;Stenhouse Australia Limited v Phillips [1974] 1 All ER 117 |
| Number of Pages | 17 |
| PDF File Link: | aa 59_06.pdf [pdf 113 KB] |