| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 36/08 |
| Hearing date | 25 Oct 2007 |
| Determination date | 08 February 2008 |
| Member | L Robinson |
| Representation | S McKenna ; P Swarbrick |
| Location | Auckland |
| Parties | Baker v The Warehouse Ltd |
| Summary | CONSTRUCTIVE DISMISSAL – Applicant had loss prevention function in job description comprising sixty five percent of total work – Respondent invoked dialogue with staff regarding initiative to improve customer service (“service initiative”) – Pursuant to service initiative respondent sought to reassign loss prevention function to managers – Applicant and other staff advised of changes – Staff asked to volunteer hours, however insufficient volunteers – Respondent’s manager informed applicant would be transferred to night duties which applicant objected to – Authority accepted respondent’s evidence that manager sought to invoke dialogue but applicant refused – Respondent eventually accepted applicant’s objection and instead proposed applicant work in stockroom – Applicant stated could not handle stockroom work – Respondent aware applicant had pacemaker – Applicant resigned after presented with letter confirming position changed to stockroom work – Respondent argued clause in employment agreement (“EA”) entitled respondent to vary duties – Respondent argued clause together with policy of “multi-skilling” gave rise to clear meaning of clause that employees may be required to work in different departments – Authority found under EA applicant appointed directly into specialist function – Respondent argued all employees employed primarily as “team members” with some appointed to specialist functions – Respondent argued clause licensed respondent to direct “team members” to work in different departments – Authority found in essence respondent’s argument was that a change in duties was not change of job or not different job – Authority found respondent’s power under clause that reassignment solely for purposes of multi-skilling – Found applicant’s reassignment to stockroom not for primary purpose of multi-skilling – Redundancy provisions in EA more aligned to situation but not invoked by either party – Authority did not think appropriate to order compliance with redundancy provisions in EA – Unjustified constructive dismissal – Remedies – Applicant’s failure to engage in discussions with respondent not blameworthy conduct – No contributory conduct – $10000 compensation appropriate given length of service and nature of grievance – Costs reserved – Store Security and Loss Prevention Officer |
| Result | Application granted ; Compensation for humiliation etc ($10,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s122;ERA s124;ERA s160(3) |
| Number of Pages | 13 |
| PDF File Link: | aa 36_08.pdf [pdf 46 KB] |