| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 390/07 |
| Hearing date | 20 Sep 2007 |
| Determination date | 11 December 2007 |
| Member | R A Monaghan |
| Representation | A Shirley ; M Griffen |
| Location | Auckland |
| Parties | McMillan v Joy Bong Ltd & Anor |
| Other Parties | Joy Bong 2005 Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Constructive dismissal - Identity of employer - During employment with first respondent, applicant discussed setting up second respondent with directors of first respondent - Meeting notes indicated would be employed by new company - No written employment agreement - Given second respondent set up to provide “clean slate” surprising if applicant genuinely wished to remain associated with first respondent - First respondent ceased to operate or pay wages - Employed by second respondent - Problems arose in relationship when applicant promoted - Letter drafted by director purporting to demote applicant on basis of performance review conducted in his absence came to applicant’s attention, although not sent - Director subsequently filed statement of problem in Authority - Applicant told to accept reduced salary and demotion and employment would end if matter went to mediation - Applicant left premises and employment ended - Director’s conduct and threats during meetings sufficient to amount to breach of obligations to accord fair and reasonable treatment to applicant - Attempt to bully applicant into reducing pay would also support breach of duty - Although Authority accepted applicant did not have skills to do promoted job, director’s approach did not meet standard expected of fair and reasonable employer - Constructive dismissal - Remedies - Arrears due and owing - PENALTY - Applicant sought penalty for failure to provide employment agreement - Ex-director responsible for failure - In circumstances, nothing to be gained by imposing penalty on respondent - General manager |
| Result | Application granted ; Reimbursement of lost wages ($7,288.48) ; Compensation for humiliation etc ($5,000) ; Arrears of wages and holiday pay ($4,274.68) ; Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | Auckland etc Shop Employees IUOW v Woolworths NZ Limited [1985] 2 NZLR 372; (1985) ERNZ Sel Cas |
| Number of Pages | 13 |
| PDF File Link: | aa 390_07.pdf [pdf 41 KB] |