| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 150/06 |
| Hearing date | 22 Jun 2006 |
| Determination date | 24 October 2006 |
| Member | P Montgomery |
| Representation | I Thompson ; P Shaw |
| Location | Christchurch |
| Parties | Phillips v iTAG Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Applicant’s employment agreement set out hours of work and stated additional hours required “from time to time” – One month into employment applicant required to work number of additional hours - Applicant told Managing Director (MD) unable to work extended hours because of late notice – Alleged response was that refusal would put applicant “on thin ice” - Applicant later informed MD he was raising personal grievance – Alleged MD had not dealt with him in good faith in terms of expected hours of work and by setting unattainable bonus target – Applicant proposed “gentleman’s agreement” whereby he would not pursue grievances but would not work extended hours and that he would begin looking for new job – Applicant claimed MD said he felt parties could still work together – Later MD asked applicant to attend meeting to discuss concerns and gave him letter containing allegations of inappropriate behaviour – Before meeting, applicant advised he was proceeding with grievances, did not want to work for company and would seek new employment as soon as possible – MD said he did not consider this to be resignation and thought parties could still work together – Following day, applicant told MD he was going to Police over email MD had previously shown applicant – Applicant claimed email pornographic but MD thought it “pretty harmless” – At meeting to discuss applicant's behaviour he replied “no comment” to each point raised – When asked, applicant restated intention to leave and proposal parties work together on matter – After brief adjournment, alleged MD said that as applicant had made it clear that he intended to leave, his statement was being taken as resignation – MD had not regarded applicant’s earlier statement of intent to leave as resignation – At that point parties had interim arrangement pending applicant putting “managed exit” proposal in writing for MD’s consideration – Status quo would remain until such time as MD considered proposal – It was only in light of events on day of meeting that MD construed statement as resignation – No evidence applicant remonstrated with MD or sought to change perception of statement - Applicant's statement that he wanted to leave as soon as possible was not, in circumstances, capable of amounting to resignation – While behaviour of applicant decidedly unusual given “managed exit” proposal that did not warrant unilateral abandoning of proposal by respondent – Repetition of intention to leave did not entitle MD to regard it as actual resignation – Unjustified dismissal – Employment agreement required applicant to work overtime and issue discussed at pre-employment stage – Parties did not appear to have discussed notice to be given if overtime required – Remedies – Contributory conduct – Authority considered applicant’s reaction to receiving letter detailing respondent’s concerns, his raising of the email incident and his threat to publicise it within tourist industry - Also considered applicant’s refusal to engage with MD during disciplinary meeting - Awards reduced by one third – Length of service 11 weeks - Area Manager |
| Result | Application granted (Unjustified dismissal) ; Reimbursement of lost wages ($10,456.28 reduced to $6,974.34)(14 weeks less earnings) ; Compensation for humiliation etc ($6,000 reduced to $4,000) ; Compensation for lost benefit (Company vehicle)($3,230.78 reduced to $2,154.93) ; Costs reserved |
| Cases Cited | Boobyer v Good Health Wanganui Ltd unreported, Goddard CJ, 24 February 1994, WEC 3/94;NZPSA v Land Corporation Ltd [1991] 1 ERNZ 741;Sadd v Iwi Transition Agency [1991] 1 ERNZ 438 |
| Number of Pages | 7 |
| PDF File Link: | ca 150_06.pdf [pdf 41 KB] |