| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 34/07 |
| Hearing date | 14 Dec 2006 |
| Determination date | 30 March 2007 |
| Member | P Cheyne |
| Representation | S Tait ; F Raharuhi |
| Location | Christchurch |
| Parties | Sara v D H Bull (1988) Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Constructive dismissal - Applicant claimed respondent breached apprenticeship agreement - Director originally agreed to be assessor - Later changed mind and prevented appointment of another assessor - No breach of duty - Director would not allow tutor to visit during work hours - Being difficult in response to deteriorating relationship - Breach of duty - However, not sufficiently serious to make resignation reasonably foreseeable - Director dissatisfied with applicant's work - Told him to re-evaluate position with respondent - Did not amount to ultimatum - Applicant found new position and resigned - Gave evidence would not have resigned until had other work - Led to conclusion conduct not dismissive - Applicant also claimed respondent's refusal to pay for upcoming course amounted to breach of duty - Could not claim constructive dismissal in anticipation of something that lay well in future - No constructive dismissal - UNJUSTIFIED DISADVANTAGE - No disadvantage arose from preventing tutor's visits - Applicant told to repay respondent full course and manual costs before left - Respondent demanded money or car keys - Conduct angry and abusive - No doubt applicant responded similarly, but responsibility for exchange rested principally with director - Unjustified disadvantage - Remedies - Compensation reflected applicant's comparatively minor contribution to situation - ARREARS OF WAGES AND HOLIDAY PAY - Respondent retained final pay against claim for manual and course fees - Money owing under original fees agreement deducted from arrears owing - Interest 9 percent - PENALTY - Respondent failed to pay arrears even though aware of legal obligations - Circumstances warranted penalty - COSTS - Less than one day investigation meeting - Applicant sought solicitor/client costs of $4,000 - $1,500 award appropriate - Apprentice engineer |
| Result | Application dismissed (Dismissal) ; Application granted (Disadvantage) ; Compensation for humiliation etc ($1,000) ; Arrears of wages and holiday pay (Quantum to be determined) ; Penalty ($1,000)(payable to Crown) ; Costs in favour of applicant ($1,500) |
| Main Category | Personal Grievance |
| Statutes | ERA s136(1);Wages Protection Act 1983 s4;Wages Protection Act 1983 s13 |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers IUOW Inc [1994] 1 ERNZ 168 ; [1994] 2 NZLR 415;Auckland Shop etc Employees etc IUOW v Woolworths (NZ) Ltd [1985] ACJ 963; [1985] 2 NZLR 372;Business Distributors Ltd v Patel [2001] ERNZ 124 (CA);Wellington Clerical Workers IUOW v Greenwich [1983] ACJ 965 |
| Number of Pages | 7 |
| PDF File Link: | ca 34_07.pdf [pdf 46 KB] |