| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 352/07 |
| Hearing date | 8 Aug 2007 |
| Determination date | 13 November 2007 |
| Member | J Scott |
| Representation | T Waikato ; D Jacobson |
| Location | Tauranga |
| Parties | Baker v Baker Timber Supplies |
| Summary | UNJUSTIFIED DISMISSAL - Constructive dismissal - Applicant had worked at family business for 20 years - Applicant’s claims occurred against background of dispute over management of family businesses and estate - Applicant given letter raising performance issues and requesting certain actions be taken - Several days later respondent’s director (“F”), who was also applicant’s mother, approached applicant at worksite to give him instructions - Due to prior incidents F felt was necessary to have police officer present for discussion - Later that day applicant and his brother twice attempted to talk with F about family matters, which resulted in police being called - Respondent’s general manager then informed applicant suspended for remainder of day and could no longer use work vehicle - Applicant received second letter from respondent advising had not addressed issues in first letter, raising new concerns, and advising disciplinary meeting to be held - Applicant advised taking sick leave and could not attend meeting - Applicant resigned, stating actions taken by respondent caused resignation - Authority found aspects of respondent’s approach to dealing with applicant’s conduct and performance issues unfair - However, subsequent communications ameliorated negative connotations of respondent’s approach and made clear applicant’s cooperation sought to continue employment relationship - Applicant chose not to see respondent’s actions as conciliatory - No breach of duty so serious that applicant had no option but to resign - No constructive dismissal - UNJUSTIFIED DISADVANTAGE - Applicant claimed suspension and removal of work vehicle amounted to unjustified disadvantage - Authority found decision to send applicant home was reasonable - Found situation rare one where employer entitled to act without further inquiry in order to preserve personal safety - Authority found removal of work vehicle reasonable in circumstances - Authority noted if wrong in finding would not have awarded remedies because of applicant’s contributory conduct - No unjustified disadvantage as claimed by applicant - Authority relied on s122 Employment Relations Act 2000 to find unjustified disadvantage grievance different from that claimed by applicant - Authority found tone and timing of respondent’s first letter to applicant unfair - Second letter unfair to extent added new and dated complaints - Respondent’s actions amounted to breach of good faith and shook applicant’s trust and confidence in employment relationship - Unjustified disadvantage - REMEDIES - Despite applicant’s poor conduct, no reduction for contributory conduct as respondent responsible for unjustified disadvantage grievance found by Authority - Award of $2,500 compensation appropriate - Plainer machinist/Plant maintenance technician |
| Result | Application dismissed (Unjustified dismissal) ; Application granted (Unjustified disadvantage) ; Compensation for humiliation etc ($2,5000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103(1)(a);ERA s103(1)(b);ERA s103A;ERA s122;ERA s124 |
| Cases Cited | Airline Stewards & Hostesses of New Zealand IUOW v Air New Zealand (1990) ERNZ Sel Cas 985 (CA);Air New Zealand v Hudson [2006] ERNZ 415;Amaltal Fishing Co Ltd v Morunga [2002] 1 ERNZ 692;Birss v Secretary of Justice [1984] 1 NZLR 513;Donaldson and Young v Dickson [1994] 1 ERNZ;Grey v Nelson Methodist Presbyterian Hospital [1995] 1 ERNZ 672 |
| Number of Pages | 25 |
| PDF File Link: | aa 352_07.pdf [pdf 85 KB] |