| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 158/06 |
| Hearing date | 7 Jul 2006 |
| Determination date | 20 November 2006 |
| Member | H Doyle |
| Representation | S Vidal & L Murdoch ; G Steel |
| Location | Christchurch |
| Parties | Farley v Nugget Point Resort Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Constructive dismissal - Resignation attributable to actions of respondent - Whether course of conduct with dominant purpose of coercing applicant to resign - Disciplinary meeting held over allegation applicant misused leave - Director advised applicant to consider matter over and move on - Applicant read draft of letter directors intended to give him on computer - Likely accessed director's personal folder - Applicant invited to further disciplinary meeting - Advised unable to attend as on stress leave - Start of email exchange - Communications from director not designed to maintain productive relationship - Director advised had spoken to applicant's doctor and police involved - When stress leave ended director advised not required to work - Resigned later that week - Emails unfair in terms of process and demonstrated lack of understanding of boundaries of employment relationship and applicant's right to privacy - Applicant young and emails designed to concern him - Behaviour capable of seriously damaging parties' relationship - Potential for applicant's relationship with doctor to be seriously undermined - Not fair to reopen investigation - Failure to continue to pay wages and subsequent communications suggested element of predetermination - Emails could be seen as having deliberate and dominant purpose of attempting to coerce applicant to resign - Respondent breached obligation not to act in manner likely to destroy trust and confidence between parties - Breach of contract and good faith as failed to pay applicant while on stress leave yet expected him to attend disciplinary meeting - Also breaches as failed to explain reasons for stopping payment when asked - Breaches serious and so undermining of employment relationship applicant entitled to treat contract as repudiated and resignation reasonably foreseeable - Fair and reasonable employer would have considered warning - Constructive dismissal - Remedies - Unlikely employment would have continued much longer - Authority had regard to notice period when setting lost wages - Applicant to bear some responsibility for police becoming involved - No compensation for police involvement or humiliation resulting from reading draft letter - BREACH OF CONTRACT - Counterclaim - Applicant breached obligations of trust and confidence by accessing director's folder without authorisation - Computer expert's charges were loss suffered as result of breach - However, putting allegation to applicant may have made expert unnecessary - Specialist advice not contemplated by parties as probable result of breach when employment agreement made - Respondent not entitled to recover damages - Manager |
| Result | Application granted (Unjustified dismissal) ; Reimbursement of lost wages (Four weeks) ; Compensation for humiliation etc ($10,000) ; Arrears of holiday pay (Half a lieu day) ; (One day sick leave) ; Application granted in part (Counterclaim) ; Costs reserved |
| Statutes | ERA s4(1A)(b) |
| Cases Cited | Auckland etc Shop Employees etc IUOW v Woolworths (NZ) Ltd [1985] ACJ 963 ; [1985] 2 NZLR 372 ; (1985) ERNZ Sel Cas 136 |
| Number of Pages | 18 |
| PDF File Link: | ca 158_06.pdf [pdf 82 KB] |