| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 121/07 |
| Hearing date | 7 Aug 2007 |
| Determination date | 29 August 2007 |
| Member | G J Wood |
| Representation | J Gwilliam ; W Gazley |
| Location | Wellington |
| Parties | Kinney v Security Firsty Holdings Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Constructive dismissal - Applicant claimed unjustifiably constructively dismissed - Claimed resignation caused by suspension without pay over disciplinary issue and by hostile and unsafe work environment - Respondent claimed suspension reasonable after series of issues, and environment safe - Applicant prescribed anti-depressants and took sick leave after upset by work call-out - Applicant claimed managing director abusive in discussing matter - Authority found stern and determined but not abusive - When on duty applicant asked for supervisor’s assistance but was required to work through problem independently - Claimed managing director abusive when discussed incident - Authority found direct and forceful but not abusive - Alarm monitoring system failed - Applicant called supervisor but unsuccessful in resolving system failure - Supervisor unaware system non-operational for several hours due to a miscommunication between parties - Respondent suspended applicant to investigate terminating employment for serious misconduct - Agreement allowed for suspension of up to one month at respondent’s discretion - Respondent videotaped disciplinary meeting - Applicant claimed unfair to videotape but no objection at time - Applicant claimed managing director intimidatory, rude and aggressive in meeting - Authority found tensions high but behaviour acceptable - In reviewing applicant’s job application respondent found had stated had qualifications and experience with Microsoft packages - Alarm system utilised Microsoft technology - Managing director requested applicant undertake Microsoft skills test with independent agency - Applicant refused test several times, claiming no need to prove self and no assurance of keeping job if passed - Applicant engaged counsel and raised personal grievance - Respondent replied that suspension without pay would be implemented if applicant did not return to work and take assessment - Authority found wages already stopped - Applicant resigned months later - Authority found applicant’s failure to remedy system failure caused serious financial exposure to the respondent, and caused injury to commercial reputation - Respondent entitled to suspend when potentially constituting serious misconduct - Entitled to require independent assessment of performance, especially due to previous issues - No breach of duty on part of respondent - Stopping pay while suspended did not cause resignation - Resignation caused by refusal to complete assessment - No constructive dismissal - UNJUSTIFIED DISADVANTAGE - Contract provided for suspension of up to one month at respondent’s discretion - Discretion to be exercised fairly - Authority found stopping pay appeared to be in retaliation to applicant obtaining legal advice - Remedies - Matter could have been resolved during contracted month of paid suspension - Applicant entitled to remainder of pay for one month’s suspension - Further compensation declined - Security operator |
| Result | Application dismissed (unjustified dismissal) ; Application granted (unjustified disadvantage) ; Reimbursement of lost wages ($910) |
| Main Category | Personal Grievance |
| Statutes | ERA s236 |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authority Officers IUOW Inc [1994] 1 ERNZ 168;Auckland Shop Employees IUOW v Woolworths (NZ) Limited [1985] 2 NZLR 372 (CA);Click Clack International Limited v James [1994] 1 ERNZ 15 |
| Number of Pages | 8 |
| PDF File Link: | wa 121_07.pdf [pdf 33 KB] |