| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 95/06 |
| Hearing date | 16 May 2006 |
| Determination date | 28 June 2006 |
| Member | J Crichton |
| Representation | R Davidson ; JJ McCall |
| Location | Christchurch |
| Parties | Solouata v New Zealand Van Lines Ltd |
| Summary | UNJUSTIFIED DISMISSAL - UNJUSTIFIED DISADVANTAGE - Applicant commenced employment in 2001 - In 2003 was offered line haul position at higher hourly rate and on different terms and conditions - Number of complaints made against applicant - Meetings about issues - Respondent demoted applicant from line haul to local work - Resulted in reduction in pay and loss of other privileges and benefits - Accepted that applicant purported to resign but withdrew resignation - A while later, applicant told operations manager to stick your job up your a***" but alleged he did not intend that to be a resignation - Respondent took comment as resignation and accepted it - Demotion - Whether demotion permitted - No basis for unilateral change in employment agreement between parties - Respondent relied on memo outlining applicant's changed position in 2003 as basis for change - Would have needed far more specific wording in document of agreement to justify unilateral demotion for what effectively was a punishment for misbehaviour - Meetings with applicant unsatisfactory - Demotion of worker in response to bad behaviour clearly disciplinary, even if no proper legal basis - Second disciplinary meeting did not follow due process and unilateral demotion was without legal authority - Unjustified disadvantage - Whether constructive dismissal - Applicant alleged demotion breach of agreement and he repeatedly sought rectification of breach - Applicant only raised objection to demotion with respondent on one occasion - Applicant established contact with Union official but did not ask them to protest demotion or seek to negotiate on matter - Only possible constructive dismissal would be respondent's failure in procedural terms and failure in respect of unilateral demotion - Those breaches founded a disadvantage but did not support a constructive dismissal - No constructive dismissal - Remedies - Contributory conduct 50 percent - If applicant had adopted collaborative approach to complaints about him by customers rather than confrontational approach, respondent might have taken different view of matters - Entitled to reimbursement of lost wages for one month plus shortfall of $200 per week between different positions plus shortfall of $200 in last week of employment - Length of service approximately four years - Furniture removal person" |
| Result | Application granted (Unjustified disadvantage) ; Reimbursement of lost wages ($1,190)(Taking into account 50 percent contributory conduct) ; Compensation for humiliation etc ($5,000 reduced to $2,500) ; Costs reserved |
| Number of Pages | 7 |
| PDF File Link: | ca 95_06.pdf [pdf 39 KB] |