| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 169/06 |
| Hearing date | 2 Nov 2006 |
| Determination date | 05 December 2006 |
| Member | H Doyle |
| Representation | A Morgan-Roberts ; C Smith |
| Location | Invercargill |
| Parties | Molloy v Sangster and Anor t/a Novus Windscreen Repairs Southland |
| Summary | UNJUSTIFIED DISMISSAL - Whether dismissal or abandonment – Employment relationship ended with applicant collecting tools and leaving premises after disagreement – Both parties expected other to make contact but neither did – Following week applicant received final pay – Authority referred to EN Ramsbottom Ltd v Chalmers (cited below) where Court of Appeal said substantial force in submission that where abandonment in issue employer should be cautious in drawing that inference and must face high threshold if contending employment ended that way – Also commented that need for trust and fair dealing in employment relationship should encourage employer to make inquiries of employee where intention not clear – Authority viewed this statement as persuasive authority for what was expected of employer in terms of obligations of trust and fair dealing – In line with good faith obligations in Employment Relations Act 2000 – Unsafe to rely on conversation between parties on day of termination to conclude how relationship ended – Further clarification necessary – Respondent should have been more cautious in drawing inference applicant abandoned employment – Applicant commented at time that he hoped respondent had “done it properly” – Although no written employment agreement, unlikely parties contemplated resignation without notice period – These matters should have suggested there was some doubt whether employment abandoned – Respondent did not sufficiently discharge obligations of trust and fair dealing before paying applicant final pay – Letter asking applicant to clarify future intentions would have sufficed – No abandonment and actions of paying final pay without clarifying position constituted dismissal – No justification for dismissal – Remedies – Day after dismissal applicant became aware respondent considered employment abandoned – Did not clarify position – Obligations of trust and fair dealing went both ways – Contributory conduct 30% - PENALTY – Written employment agreement may have made difference to events after dismissal – Moderate penalty warranted – Length of service one year nine months - Auto glazier |
| Result | Application granted ; Reimbursement of lost wages ($2,840 reduced to $1,988)(24 days) ; Compensation for humiliation etc ($5,000 reduced to $3,500) ; Penalty ($300)(Payable to Crown) ; Costs reserved |
| Statutes | ERA s63A;ERA s136(2) |
| Cases Cited | EN Ramsbottom Ltd v Chambers [2000] 2 ERNZ 97;Lwin v A Honest International Co Ltd [2003] 1 ERNZ 387 |
| Number of Pages | 7 |
| PDF File Link: | ca 169_06.pdf [pdf 87 KB] |