| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 118/06 |
| Hearing date | 24 May 2006 |
| Determination date | 10 August 2006 |
| Member | P Cheyne |
| Representation | Jenny Guthrie ; Barry Dorking |
| Location | Christchurch |
| Parties | Taylor v Steel & Tube Holdings Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant alleged respondent failed to provide employment agreement or address workplace bullying – Applicant claimed health affected and no choice but to resign – Respondent said applicant chose to resign, having been given opportunity to withdraw verbal resignation – Copy of employment agreement available in break rooms – Respondent had not fully complied with obligations to provide copy of intended agreement but in circumstances no disadvantage and no merit in penalty claim – Workplace practice was for staff to interrupt breaks to attend customers – Applicant’s insistence on uninterrupted breaks put him offside with work mates and he became target of some banter – Applicant spoke with manager, who made entitlement to uninterrupted break clear to other staff – To avoid banter applicant took breaks in car – Manager had concerns over applicant’s job performance and got applicant’s colleagues to note mistakes in a book – Several negative comments made about break issue – Manager met applicant to discuss performance – Not disciplinary meeting – Applicant “gobsmacked” and saw book as personal attack – Applicant’s solicitor wrote to respondent outlining his distress and stated effect on health – Manager replied that he would respond after advised by head office - Applicant presented manager with medical certificate stating unfit for work and then verbally resigned – Respondent offered applicant ability to withdraw resignation and indicated willingness to attend mediation – No difficultly with manager recording training or performance concerns – Applicant not knowing about mistakes book was not procedural flaw, however it would have been unfair to take disciplinary action without providing opportunity to respond – Manner in which information compiled did constitute unjustified action – Staff should not have had access to mistakes recorded by others – Tone of several entries indicated some staff saw book as more than record for training purposes – Respondent to take responsibility as it initiated process – Compilation of mistakes book did disadvantage applicant – Applicant also unjustifiably disadvantaged by respondent’s delay in substantively responding to solicitor – Respondent knew applicant having difficulties with other staff and with work – Situation required prompt response exploring problem, with discussion about and implementation of measures to address it – Respondent breached express and implied obligations – Applicant disadvantaged as health deteriorated – Unjustified disadvantage – Applicant resigned predominantly because of breaches – Resignation reasonably foreseeable in light of solicitor’s letter against background known by manager – Constructive dismissal – Training and support provided by respondent not deficient – No merit in respondent’s claim that applicant misrepresented himself during appointment process - Applicant represented skills and abilities in positive but realistic manner – Remedies - No loss of remuneration properly attributable to personal grievance – Applicant should have accepted invitation to withdraw resignation and attend mediation – Compensation of $6,000 awarded – In awarding compensation Authority discounted effects from applicant’s incorrect perception about other alleged breaches – Length of service three months – Trade shop worker |
| Result | Application granted ; Compensation for humiliation etc ($6,000) ; Costs reserved |
| Cases Cited | Attorney-General v Gilbert [2002] 1 ERNZ 31 ; [2002] 2 NZLR 342;Auckland Electrical Power Board v Auckland Provincial District Local Authorities Officers IUOW Inc [1994] 1 ERNZ 168;Business Distributors Ltd v Patel [2001] ERNZ 124;New Zealand Institute of Fashion Technology v Aitken [2004] 2 ERNZ 340 |
| Number of Pages | 7 |
| PDF File Link: | ca 118_06.pdf [pdf 45 KB] |