| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 28/08 |
| Hearing date | 16 Apr 2007 - 23 Aug 2007 (14 days) |
| Determination date | 04 February 2008 |
| Member | J Scott |
| Representation | M Hammond ; P Morgan, J Hardaker |
| Location | Hamilton |
| Parties | Hodgson v Parentline Charitable Trust |
| Summary | UNJUSTIFIED DISMISSAL – Constructive dismissal – Good faith – Applicant ran Parentline for 25 years before it became charitable trust and respondent formed – Applicant member of oversight group (“TRTK”) that had ability to remove Board members – Respondent decided to measure Parentline’s effectiveness – Psychologist (“ND”) contracted to design study – Shortly after engaging ND, applicant cancelled project and sought to terminate her contract – When respondent sought advice on legality of ending contract, applicant alleged poor performance – Allegations against ND unfair and unfounded – Applicant misled respondent as to true position – Applicant objected strongly when respondent confirmed ND’s contract and continued with project – Resigned in dramatic fashion and expected Board to attempt to convince her to stay - Resignation did not relate to alleged breaches of duty by respondent, also, applicant had affirmed breaches – No constructive dismissal – After respondent accepted resignation, applicant got TRTK to lobby it to reconsider - In normal circumstances, employer does not accept or reject resignation but merely acknowledges it – However, resignation made it clear applicant felt unfairly treated and had not simply decided to retire – No employer, acting in good faith, could ignore such missives – Required to engage applicant and inquire as to meaning of resignation, satisfy itself it was genuine and attempt to resolve issues – Simply accepting resignation amounted to serious breach of good faith and amounted to “sending away” dismissal - In circumstances, dismissal unjustified – Board compounded breach by not reconsidering resignation when it became clear applicant had changed mind, and by manner it took over management of Parentline - However, applicant did not communicate with Board or advise it she had reconsidered, as did not want to appear to be backing down - Not consistent with good faith obligations – Applicant acted as if had not resigned – Conspired with TRTK to remove board members and have herself reinstated as CEO – Demonstrated ulterior motives and multiple, serious and sustained breaches of good faith – Breaches founded on refusal to accept Board and its legitimate governance role – Adopted dismissive and confrontational approach in relations with Board - Breaches so blameworthy applicant disentitled to remedies, otherwise Authority would have awarded her $25,000 compensation and one year’s lost wages – Contributory conduct 100 percent - Authority took into account serious misconduct Board not aware of at time, but now subject of counterclaim – COUNTERCLAIM – Recovery of monies – Respondent sought to recover unauthorised salary increase and bonus paid to applicant – Board had not approved either payment – Applicant directed to repay monies – CEO |
| Result | Application granted ; Counterclaim granted ; Recovery of monies (Quantum to be determined) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s3(a);ERA s3(a)(i);ERA s4;ERA s4(1A);ERA s103A |
| Cases Cited | Abdalla v Chief Executive Officer of the Southern Institute of Technology unreported, Colgan J, 5 May 2006, CC 4/06;Air New Zealand Ltd v Hudson [2006] 1 ERNZ 415;Ark Aviation Ltd v Newton [2001] ERNZ 133;Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers IUOW Inc [1994] 1 ERNZ 168 ; [1994] 2 NZLR 415;Boobyer v Good Health Wanganui unreported, Goddard CJ, 24 February 1994, WEC 3/94;Carlton and United Breweries (NZ) Pty Ltd v Bourke [1994] 2 ERNZ 1;Carter Holt Harvey Ltd v National Distribution Union Inc [2002] 1 ERNZ 239;Hickey v Maori Legal Services - Te Ture Manaaki O Rehua Trust unreported, P Cheyne, 10 February 2004, CA 15/04;Honda New Zealand Ltd v New Zealand Shipwrights Union [1990] 3 NZILR 23;Paykel Ltd v Ahlfeld [1993] 1 ERNZ 334;Salt v Fell [2006] 1 ERNZ 449;Telecom NZ Ltd v Nutter [2004] 1 ERNZ 315;Wellington, Taranaki and Marlborough Clerical etc IUOW v Greenwich (t/a Greenwich and Associates Employment Agency and Complete Fitness Centre) [1983] ACJ 965 ;(1983) ERNZ Sel Cas 95;Waitakere City Council v Ioane [2004] 2 ERNZ 194;Western Excavating Ltd v Sharp [1978] 1 All ER 713;X v Auckland District Health Board [2007] ERNZ 66 |
| Number of Pages | 148 |
| PDF File Link: | aa 28_08.pdf [pdf 401 KB] |