| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 362/07 |
| Hearing date | 14 Aug 2007 |
| Determination date | 19 November 2007 |
| Member | R Arthur |
| Representation | M Ryan ; J Latimer, A Clark, C Blake |
| Location | Auckland |
| Parties | Charles v Waitakere City Council and Anor |
| Other Parties | North Shore City Council |
| Summary | UNJUSTIFIED DISADVANTAGE – First respondent (“WC”) contracted to provide dog control services to second respondent (“NSC”) – Applicant employed on fixed term to provide services to NSC – NSC expressed concern about applicant’s performance to WC several times - Allegations not put to applicant and she was unaware NSC considering invoking clause in contract to remove her from duties – Clause subsequently invoked and WC attempted to transfer applicant to duties at WC for remainder of fixed term – Applicant raised grievance and did not return to work – Applicant entitled to know, and have opportunity to comment on, allegations and possibility removal clause would be invoked – Also entitled to opportunity to improve work practices – WC breached trust and confidence, and statutory duty of good faith to be active and communicative – Also breached duty not to act in way likely to mislead or deceive when advised applicant of NSC’s demand and transfer – No contractual basis for transfer - Unjustified disadvantage – Remedies – Applicant remained employed on unpaid sick leave – Entitled to wages lost immediately following removal from NSC position – Could have expected to be stood down on full pay while consulted about alternative arrangements – Reasonable period four weeks as did not mitigate loss – Contributory conduct 25 percent - PENALTY – Applicant alleged NSC aided and abetted WC’s breach of employment agreement – Not open to Authority to consider NSC’s commercial decision to invoke removal clause – Whether contract between respondents structured and applied to avoid employee’s rights important question of policy within Authority’s role and powers in equity and conscience – Removal clauses inconsistent with employment statutory regime – No evidence removal clause operated by NSC in calculated way to help WC avoid obligations – No penalty – Dog control officer |
| Result | Application granted (Disadvantage) ; Reimbursement of lost wages (4 weeks reduced to 3) ; Compensation for humiliation etc ($10,000 reduced to $7,500) ; Application dismissed (Penalty) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A);ERA s4(1A)(b);ERA s103A;ERA s134;ERA s134(2);ERA s157(3);ERA s160(2) |
| Cases Cited | Donaldson & Youngman (t/a Law Courts Hotel) v Dickson [1994] 1 ERNZ 920;G & H Trade Training Ltd v Crewther [2002] 1 ERNZ 513;Telecom New Zealand Ltd v Nutter [2004] 1 ERNZ 315 |
| Number of Pages | 21 |
| PDF File Link: | aa 362_07.pdf [pdf 66 KB] |