| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 27/07 |
| Hearing date | 3 Oct 2006 |
| Determination date | 23 March 2007 |
| Member | P Cheyne |
| Representation | P Redpath, M Thomas ; H Fulton |
| Location | Invercargill |
| Parties | Tuari & Anor v Sims Pacific Metals Ltd & Ors |
| Other Parties | Tuari ; Ripley, Carlyon & Pape |
| Summary | UNJUSTIFIED DISMISSAL – Constructive dismissal - First applicant (“J”) wife of second applicant (“T”) - Both employed by respondent - Respondents concerned about T’s performance – T suffered stress-related breakdown – T given two options, disciplinary process or exit package – T agreed he and J would resign in exchange for money – T confirmed had spoken to J and she agreed to resign – T signed settlement agreement - Next morning applicants returned to work, where J deleted computer files and T broke memory stick – J disputed resignation, claiming T could not make decision on her behalf – Respondents stood J down but later said could return to work – J subsequently resigned – Whether constructively dismissed - Only possibility of coercion was dealings over J’s later resignation – Respondents could be criticised for initiating arrangements through T – However, J knew and implicitly consented to arrangements – No course of conduct with deliberate and dominant purpose of coercing resignation – No sufficiently serious breach of duty making resignation reasonably foreseeable - No constructive dismissal – BREACH OF CONTRACT - Counterclaim - Respondents claimed breach of contract and sought damages - Implied duty of trust and confidence extended to prohibit intentionally damaging company property – J breached implied obligations by deleting computer files and assisting T in breaking memory stick – No evidence of actual loss aside from memory stick – J ordered to pay damages for memory stick only - PENALTY – Respondents claimed applicants breached implied terms and/or aided and abetted each other in breaching employment agreements – No reason to distinguish between levels of culpability – Penalty imposed against applicants for breach of implied terms of trust and confidence – BARGAINING – T counterclaimed settlement agreement result of unfair bargaining under s68 Employment Relations Act 2000 (ERA") – Authority found settlement agreement term of employment agreement and unfair bargaining claim considered - While T unwell, no evidence could not understand implications of settlement agreement – Evidence T went into meeting intending to resign – Could not succeed under s68(2)(a) ERA – Whether T induced to enter settlement agreement by oppressive means, undue influence or duress – Although pressured by options put to him at meeting, could not succeed in face of evidence intended to resign – Valid full and final agreement meant T could not succeed in personal grievance – Could not circumvent effect of settlement with penalty actions against respondents - J's length of service seven months, T's not specified - Office assistant and yard manager" |
| Result | Application dismissed (Unjustified dismissal, bargaining) ; Application granted (Breach of contract, penalty) ; Damages ($50)(Payable to Respondents) ; Penalty ($1,000 each applicant)(Payable to Crown) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ECA s19(4);ERA s68(1);ERA s68(2);ERA s68(2)(a);ERA s68(3);ERA s68(4);ERA s161(1)(r) |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authorities IUOW Inc [1994] 1 ERNZ 168;Auckland Shop Employees IUOW v Woolworths NZ [1985] ACJ 963;Department of Survey & Land Information v NZ Public Service Association [1992] 1 ERNZ 851;F v Attorney-General [1994] 2 ERNZ 62;Finnigan v Hanover Group Ltd unreported, L Robinson, 7 July 2006, AA 236/06;Hands v WEL Energy [1992] 1 ERNZ 815;Kerr v Associated Aviation (Wellington) Ltd [2005] 1 ERNZ 632;NZEI v ANI School Trustees [1992] 3 ERNZ 243;Shaffer v Gisborne Boys' High School Board of Trustees [1995] 1 ERNZ 94;Tesco Stores Limited v Pook [2004] IRLR 618 |
| Number of Pages | 14 |
| PDF File Link: | ca 27_07.pdf [pdf 86 KB] |