| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 32/08 |
| Hearing date | 10 Jul 2007 |
| Determination date | 07 February 2008 |
| Member | R A Monaghan |
| Representation | R Towner ; J Banner |
| Location | Auckland |
| Parties | Patterson v Goh Banner Concepts Development Ltd |
| Summary | PRACTICE AND PROCEDURE – Identity of employer – JB minority shareholder in respondent and G director and majority shareholder – JB argued attended investigation as witness for respondent and “to protect G” – Authority thought necessary considering JB’s perception of role to clarify whether issue existed as to identity of employer – Authority found no ground on which proposition that respondent not applicant’s employer could be disputed – No allegation JB employer party in personal capacity – UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant’s mother sought JB’s help as applicant suffering from depression – JB created role for applicant where applicant to help in construction of JB’s wife’s house – Conflicting evidence whether JB knew before or after employment relationship began that applicant suffered from sleep apnoea – JB became concerned about applicant’s numerous absences from work – Applicant claimed proposal made by JB to reduce hourly rate and working days – Also claimed JB made various derogatory comments about applicant’s ability to work – JB denied telling applicant if offer rejected would “have to go” – Next day applicant rejected proposal – JB made second offer reducing applicant’s pay – Applicant claimed when offer refused JB became angry and abusive – On same day applicant contacted JB and stated would not return to work – JB denied making abusive statements, however, Authority found JB’s tone consistent with demeanour and tone exhibited at investigation meeting – Authority accepted applicant’s account of evidence – Authority found JB attempted to bully applicant into accepting reduced rate of pay, reduced role or both – Found bullying included threats about continued employment and quality of working life – Found applicant could not continue employment under those circumstances – Constructive dismissal – Authority accepted high level of absences from critical position, however, JB not entitled to attempt to browbeat applicant regarding terms of employment – REMEDIES – Authority found applicant’s actions contributed to situation giving rise to grievance but not sufficiently blameworthy to warrant reduction of remedies – Found applicant could not help fact was ill and not responsible for way JB addressed matter – Applicant claimed because of sleep apnoea ability to obtain alternative employment limited – Medical evidence provided to Authority indicated sleep apnoea did not prevent applicant from mitigating loss by finding alternative employment – Authority not satisfied applicant’s loss caused by personal grievance to any significant degree – Four weeks reimbursement of lost wages appropriate – Authority found $3500 compensation appropriate given injury to applicant’s feelings and loss of self esteem – Builder/Foreman |
| Result | Application granted ; Reimbursement of lost wages (4 weeks) ; Compensation for humiliation etc ($3500) ; Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | Auckland etc Shop Employees IUOW v Woolworths NZ Limited [1985] 2 NZLR 372;Wellington, etc, Clerical etc IUOW v Greenwich [1983] ACJ 965;Paykel Ltd v Ahlfield [1993] 1 ERNZ 334 |
| Number of Pages | 10 |
| PDF File Link: | aa 32_08.pdf [pdf 32 KB] |