| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 49/06 |
| Hearing date | 2 Feb 2006 |
| Determination date | 28 March 2006 |
| Member | G J Wood |
| Representation | D Kennedy ; A King |
| Location | Napier |
| Parties | Buckley v Nimon and Sons Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant long-standing employee with excellent reference from previous manager - New manager raised performance issues in meeting – Subsequently provided sophisticated “personal performance plan” – Signed agreement to plan required by end of working day - Applicant had difficulty understanding plan and failed to sign – Letter issued stating plan in effect for next 30 days and if “immediate, sustained and consistent improvement” not demonstrated dismissal possible – Applicant resigned after failed mediation attempt – No course of conduct with deliberate and dominant purpose of coercing applicant to resign – However breaches of duty of significant seriousness to make applicant’s resignation reasonably foreseeable – Applicant unaware of purpose of initial meeting – Negative conclusions about applicant’s performance reached prior to initial meeting without any input from applicant – Issued with plan that applicant could not reasonably have been expected to understand - Pressured to accept plan within unreasonable time frame – Most serious failure was letter stating that dismissal possible if no immediate improvement – Exacerbated by indication in letter that plan did not restrict respondent from dismissing applicant for poor performance or misconduct during 30 day period of plan or afterwards – Demonstrated focus moved beyond performance management to threat of dismissal at any time – Letter was antithesis of maintaining constructive employment relationship - Applicant entitled to resign – Unjustified constructive dismissal – Length of service 18 years – Workshop manager |
| Result | Application granted ; Reimbursement of lost wages ($24,956.72)(12 months) ; Compensation for humiliation etc ($10,000) ; Costs reserved |
| Statutes | ERA s4(1A);ERA s103A;ERA s123(1)(b);ERA s123(1)(c)(i) |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers IUOW (Inc) [1994] 1 ERNZ 168 ; [1994] 2 NZLR 415;Auckland Shop Employees IUOW v Woolworths (NZ) Ltd [1984] ACJ 41;Donaldson & Youngman (t/a Law Courts Hotel) v Dickson [1994] 1 ERNZ 920;Telecom New Zealand Ltd v Nutter [2004] 1 ERNZ 315 |
| Number of Pages | 11 |
| PDF File Link: | wa 49_06.pdf [pdf 54 KB] |