| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 307/06 |
| Hearing date | 19 Jul 2006 |
| Determination date | 02 October 2006 |
| Member | J Scott |
| Representation | J Song : A Fitzgibbon |
| Location | Auckland |
| Parties | Jeong v Hanyang Corporation Ltd |
| Summary | UNJUSTIFIED DISMISSAL – UNJUSTIFIED DISADVANTAGE – Constructive dismissal – Alleged respondent failed to have systems in place to protect employees from violence – Group from respondent’s business went out to dinner and Karaoke – Director of respondent threw half-full bottle of whisky and it hit applicant on head – Director alleged was trying to get his wife’s attention – Applicant alleged he lost consciousness and was taken to emergency unit – Applicant alleged director assaulted him in retaliation for his brother’s new business – Applicant initially said he had fallen down stairs to prevent wife finding out truth, but later admitted truth and went to police – Director and wife apologised next day – Director convicted of acting with reckless disregard for safety of others – Credibility finding in favour of respondent – All witnesses denied applicant actually lost consciousness – Parties had enjoyed excellent relationship – Director of respondent took reasonable steps to protect own business interests but did not threaten to take every measure to destroy applicant’s brother’s business – Was most improbable that director tossed bottle with intention of hitting anyone – However, was a reckless act – Unjustified disadvantage – Entitled to compensation of $5,000 – Could not find that director’s action amounted to breach of duty so serious that it justified applicant treating relationship at end without at least talking to director – In context of good relationship between parties and the fact much alcohol had been consumed, should have been matter for discussion between parties particularly since director spoke to applicant as soon as he could afterwards and apologised – No constructive dismissal – Evidence disclosed that more probable reason for applicant leaving employment was that respondent’s action pointed the way to the recovery of significant monetary damages – Employee entitled to treat significant breach of duty as unilateral termination and sue – But resignation must be for the breach not the potential compensation – No unjustified dismissal – Entitled to lost remuneration for period off work due to injuries – Other claims made by applicant either misconstrued or applicant was complicit in breach (failure to provide IEA) and must be declined – Length of service until disadvantage 7 ï¾½ months - Date of resignation not specified - Sales Manager |
| Result | Application granted (unjustified disadvantage) ; Reimbursement of lost wages (2 weeks) ; Compensation for humiliation etc ($5,000) ; Application dismissed (unjustified dismissal and other claims) ; Costs reserved |
| Statutes | ERA s65;ERA s66;HSE;Wages Protection Act 1983 |
| Number of Pages | 10 |
| PDF File Link: | aa 307_06.pdf [pdf 41 KB] |