| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 82/07 |
| Hearing date | 20 Feb 2007 - 19 Apr 2007 (2 days) |
| Determination date | 25 July 2007 |
| Member | J Crichton |
| Representation | P James ; O Paulsen |
| Location | Christchurch |
| Parties | Lapthorn v Hayes t/a Wisteria Cottage Day Spa |
| Summary | UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed respondent unjustifiably reneged promise of day leave – Respondent claimed never unconditionally promised day leave – Applicant attended disciplinary meeting with father as support person – Written warning issued – Applicant did not return to work – Applicant’s father telephoned respondent – Applicant’s father claimed told by respondent that applicant must work all weekends except statutory holidays for 8 months, and preferable if applicant resigned because casual worker able to work more hours than permanent part-time worker – Authority preferred applicant’s father’s evidence of conversation – Applicant’s father formed view that respondent would make applicant’s life “a misery” if returned to workplace – Evidence from co-workers that respondent hard on applicant and did not want her back in workplace – Witnesses gave evidence that respondent actively sought to discourage applicant from returning to work – Inconsistencies between respondent’s written and oral evidence, and oral evidence unsure or evasive – Authority found that after day leave respondent’s behaviour represented course of conduct with deliberate dominant purpose of extracting applicant’s resignation – Dismissal unjustified - UNJUSTIFIED DISADVANTAGE – Some events outside 90 day period – No application to pursue grievance out of time – Found applicant could not rely on matters prior to 90 day period in relation to claim for unjustified disadvantage – Authority considered allegations regarding applicant’s day leave and that hours of work changed unilaterally – Evidentiary difference between parties’ accounts – Authority preferred respondent’s evidence – Found applicant not guaranteed 35 hours per week – No unjustified disadvantage – Counterclaim for recovery of financial losses that applicant’s work would have generated on day absent without agreement dismissed – PENALTY – Respondent claimed applicant breached employment agreement for day leave – Found respondent already responded by issuing disciplinary warning – Inappropriate to add further penalty – However, contributory conduct relevant to award for dismissal - Remedies – Found applicant’s failure to attend work “disgraceful” – 75 percent contributory conduct – Beauty therapist |
| Result | Application dismissed (disadvantage) ; Application granted (constructive dismissal) ; Compensation for humiliation etc $1,000 ; Lost wages $1,366.50 ; Counterclaim dismissed ; Penalty dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s115 |
| Number of Pages | 12 |
| PDF File Link: | ca 82_07.pdf [pdf 39 KB] |