| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 2/07 |
| Hearing date | 15 Nov 2006 |
| Determination date | 11 January 2007 |
| Member | H Doyle |
| Representation | C Smith ; R Capman & S Barr |
| Location | Christchurch |
| Parties | O'Kelly-Barnes v Tillermans (2003) Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Constructive dismissal - Applicant advised restaurant owner study commitments required another chef to cover some shifts - Next day applicant given letter stating he would be replaced as head chef - Applicant resigned - No written employment agreement - More probable than not applicant did not clearly articulate intention to study at interview - No agreement applicant could study while head chef - Authority not satisfied relationship terminated by mutual agreement - Respondent's letter effectively dismissed applicant - Resignation within notice period in nature of constructive dismissal - Fair and reasonable employer in respondent's circumstances would conclude it required head chef to work all shifts - Dismissal substantively justified - There was difference between considering proposal and consequences if proposal unsuccessful - Fairness required applicant to be clear study leave put employment in jeopardy - Procedurally unfair to hand applicant letter advising of replacement - Dismissal unjustified - Remedies - No order for lost wages as employment would have inevitably terminated when course began - Applicant could have worked until then - Name of respondent amended by consent - Length of service less than three months - Head chef |
| Result | Application granted ; Compensation for humiliation etc ($1,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Number of Pages | 7 |
| PDF File Link: | ca 2_07.pdf [pdf 41 KB] |