| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 25/07 |
| Hearing date | 19 Feb 2007 |
| Determination date | 20 March 2007 |
| Member | H Doyle |
| Representation | P Anderson & R Ibbotson ; N Soper |
| Location | Queenstown |
| Parties | Baynes v Mouttaki |
| Summary | UNJUSTIFIED DISMISSAL - Constructive dismissal - Abandonment - Applicant raised number of issues with employment - On waiting list for surgery when accepted job - Unfortunate applicant cancelled surgery but Authority not satisfied denied leave - Entitlement to bereavement leave capable of clarification if raised with respondent - Authority not satisfied respondent acted inappropriately or had predetermined plan to replace applicant - Warned twice about performance - Altercation while applicant delivering mail - Applicant alleged assaulted by respondent - Complained to police but charge withdrawn as applicant did not want to proceed - Applicant in receipt of ACC since incident - Respondent denied assaulting or dismissing applicant, claimed she quit - Authority not satisfied to required degree of probability assault occurred - No breach of duty of sufficient seriousness to make it reasonably foreseeable applicant would not be prepared to continue work - No constructive dismissal - Alternatively, alleged actually dismissed by letter purporting to accept resignation - Letter sent after respondent aware of police complaint - Applicant had not returned to work and refused to take phone call - Fair and reasonable employer, given knowledge of police complaint, would not have concluded applicant voluntarily resigned - All parties aware meeting to be held to discuss issues - No resignation to accept - Respondent should have been cautious about drawing inference employment abandoned, particularly given police complaint - Obligation of good faith not sufficiently discharged - Finalising applicant's employment without clarifying her intentions constituted dismissal - No abandonment clause in employment agreement and, in context of police complaint, dismissal unjustified - Remedies - Applicant's failure to clarify position contributory conduct - Applicant indicated never intended to return so no award of lost wages - Postie |
| Result | Application granted ; Compensation for humiliation etc ($1,200) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Injury Prevention Rehabilitation and Compensation Act 2001 s317(3) |
| Cases Cited | EN Ramsbottom Ltd v Chambers [2000] 2 ERNZ 97 |
| Number of Pages | 10 |
| PDF File Link: | ca 25_07.pdf [pdf 68 KB] |