| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 233/07 |
| Hearing date | 31 Jul 2007 |
| Determination date | 03 August 2007 |
| Member | L Robinson |
| Representation | C Cleverly (in person) ; C Phillips |
| Location | Auckland |
| Parties | Cleverly v United Corporation Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Constructive dismissal – Parties accepted employment agreement (“EA”) reflected terms and conditions of employment despite different company name on EA – Authority found applicant must be taken to have accepted conditions in signed EA – Respondent alleged applicant used tape recorder to record conversations with co-workers to use information to “take down” respondent and other employees – Applicant conceded making recordings but denied threatening behaviour – Respondent also alleged applicant threatened co-worker (“C”) – Disciplinary meeting scheduled to discuss allegations – Applicant suspended on pay until meeting – Applicant denied allegations of threatening behaviour towards co-worker – Respondent argued unhappy applicant secretly recording conversations as behaviour made staff feel unsafe – Respondent argued staff scared as understood applicant recording conversations for two months – Applicant told could not work for respondent because staff felt threatened – Respondent claimed due process followed and applicant treated fairly through investigation – Respondent suggested that applicant move to alternative store – Following adjournment applicant declared did not feel comfortable working for respondent – Respondent advised applicant as did not want to return to work in circumstances employment terminated – Applicant claimed did not accept offer at alternative site because would appear to be admitting to allegations – Respondent alleged received phone call from C claiming applicant threatened staff – Respondent argued presented applicant with signed statement from C – Applicant claimed never received statement until commencement of Authority investigation – Authority preferred applicant’s evidence – Authority found respondent’s alleged dates of events incorrect – Found respondent’s evidence in answer to applicant’s claim unreliable – Authority did not agree that allegations by C were properly and fairly put to applicant – Applicant not informed of particulars of threats – Authority also found nothing in written complaint could be considered objective threat regardless of C’s reaction – Unjustified constructive dismissal – Decision to relocate applicant to alternative site unfair because contrary to duty of good faith owed to applicant – Breach by respondent so serious reasonable for applicant to conclude employment repudiated – Remedies – No contributory conduct – Authority found applicant suffered hurt, humiliation, anxiety and embarrassment as result of grievance – $3000 compensation appropriate – Video store assistant |
| Result | Application granted ; Reimbursement of lost wages ($4,620.00) ; Compensation for humiliation etc ($3,000) |
| Main Category | Personal Grievance |
| Statutes | ERA s124 |
| Number of Pages | 8 |
| PDF File Link: | aa 233_07.pdf [pdf 31 KB] |