| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 238/07 |
| Hearing date | 2 Jul 2007 |
| Determination date | 08 August 2007 |
| Member | R A Monaghan |
| Representation | B Quarrie ; M Broadbelt |
| Location | Kerikeri |
| Parties | McDonald v Allen Motors Northland Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed constructively dismissed – Respondent claimed applicant resigned - Applicant had poor relationship with subordinate employee (“T”) – Applicant felt had been threatened and intimidated by T in altercation about workplace accident - Applicant requested assistance in dealing with matter from managing director (“A”) – A suggested address problem upon applicant’s return from two weeks planned leave – Applicant unhappy with suggestion and contacted respondent’s accountant, who faxed suggested letter of warning – Further altercation occurred when applicant gave T written warning - Applicant told temporary holiday replacement (“B”) that T dismissed – Applicant claimed believed T dismissed because warning letter stated that if behaviour was repeated, employment would be terminated – Authority found T never dismissed and applicant aware not authorised to dismiss staff – While on holiday leave B told applicant that T still employed - Applicant said would resign if T not dismissed – B suggested applicant enjoy leave and address matter on return – Applicant wrote letter of resignation, where expressed position untenable due to lack of authority, lack of written job description, and abuse by two staff members – A took legal advice on letter and accepted applicant’s resignation – Informed applicant resignation accepted and assumed from no notice period and tone of letter that termination already occurred – Applicant claimed astonished by A’s response as did not intend letter to be full resignation because did not include statement of when employment would end – Authority preferred respondent’s evidence that applicant had not left any messages with staff for A to contact him – Issue was whether acceptance of resignation amounted to constructive dismissal – No dispute A aware applicant very distressed by incidents with T – Authority found nothing inappropriate in A suggesting applicant take planned leave to calm down before addressing problem – If applicant had resigned on day of incident, possibility resignation not to be taken at face value – Applicant ignored several suggestions to use leave to cool down – Applicant accepted gave great deal of thought to resignation - Conduct not equivalent to outburst of frustration not intended to be taken literally – Not obvious that applicant sought further discussion by not including termination date in letter – Found nothing in circumstances reasonably capable of conveying to respondent that applicant did not mean to resign – Found if applicant changed mind, should have been more active in contacting respondent – Lack of notice did not render letter incapable of being treated as binding resignation, but rather raised question of whether in circumstances it could be treated as one – In circumstances, could be treated as binding resignation - No dismissal - Branch manager |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | Boobyer v Good Health Wanganui Ltd (CJ Goddard, 24 Feb 1994, WEC 3/94);NZ PSA v Land Corp Limited [1991] 1 ERNZ 741 |
| Number of Pages | 10 |
| PDF File Link: | aa 238_07.pdf [pdf 33 KB] |