| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 213/01 |
| Determination date | 05 December 2001 |
| Member | D Asher |
| Representation | V Spackman ; R Burnes |
| Location | Auckland |
| Parties | Jobson v Ophthalmic Instrument Company Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - Alleged warnings unjustified and in breach of good faith obligations and employment contract - Employed on 6-month trial basis - Salary to increase once trial period satisfactorily completed - No performance issues raised during trial period - Became full time employee but salary not increased - Concerns about performance raised subsequently - Asked to attend disciplinary meeting - No indication that meeting was to be disciplinary in nature, that it could result in a warning, or that the applicant was entitled to have representative present - After general discussion given written warning - Subsequently given second and final written warning - Alleged given no indication he was to receive final warning - Work had allegedly improved in period between warnings - Discrimination - Alleged discriminated against once personal grievance submitted - Subjected to ill treatment from other staff members - Respondent in breach of employment contract for failing to raise salary at end of trial period - Penalty for breach appropriate - Warnings procedurally unfair - Process lacked clarity - Not given proper notice of respondent's concerns - Not given reasonable and fair opportunity to address concerns - Warnings breached respondent's good faith obligations and implied contractual obligation to treat applicant fairly and reasonably - Penalties not appropriate for those breaches - Warnings amounted to unjustified disadvantage - No evidence of discrimination - No retaliatory action by respondent - UNJUSTIFIED DISMISSAL - Constructive dismissal - Resigned because of failure to increase salary, warnings and unbearable work environment - Breaches not sufficient to repudiate employment contract or lead applicant to resign - Conduct not calculated to destroy or damage relationship - Not reasonably foreseeable that applicant would resign - Sales representative |
| Result | Application granted (Unjustified disadvantage) ; Application dismissed (Unjustified dismissal) ; Compensation for humiliation etc ($3,500) ; Arrears of Wages (quantum to be calculated by parties) ; Penalty ($500)(Applicant) ; ($500)(Crown) ; Costs reserved |
| Statutes | ERA s4;ERA s103;ERA s104;ERA s107;ERA s109;ERA s131;ERA s133;ERA s136(2);ERA s160(3) |
| Cases Cited | Auckland etc Shop Employees etc IUOW v Woolworths (NZ) Ltd [1985] ACJ 963; [1985] 2 NZLR 372;Baguley v Coutts Cars Ltd [2000] 2 ERNZ 409;Drummond v Coca Cola Bottlers NZ [1995] 2 ERNZ 229;Marlborough Harbour Board v Goulden [1985] 2 NZLR 378;Sutton v Director-General of the Department of Social Welfare unreported, Palmer J, 11 May 1999, CC 12/99;Trotter v Telecom Corporation of NZ Ltd [1993] 2 ERNZ 659 |
| Number of Pages | 15 |
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