| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 71/08 |
| Hearing date | 13 Feb 2008 - 14 Feb 2008 (2 days) |
| Determination date | 04 March 2008 |
| Member | L Robinson |
| Representation | B Spong ; M Kelly |
| Location | Auckland |
| Parties | Morgan v Watkins Young & Company t/a Briargate Dementia Care Residence & Anor |
| Other Parties | Watkins |
| Summary | UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant sought first and second respondent be jointly and severally liable for any remedies awarded – Second respondent (“W”) sole director of first respondent – Respondent argued applicant resigned following unsuccessful attempt for salary review – Authority noted prior to investigation meeting subject matter involved possibly criminal conduct – Authority considered would not require W to answer any incriminating questions – Applicant reconciled trust account as part of duties – Applicant informed allegedly unlawful withdrawals made by W – Applicant regarded withdrawals from trust account highly unethical and improper – Applicant discussed disapproval with other staff members including manager (“M”) – When questioned by applicant, W said borrowed money from account and amounts recorded – Authority found W told applicant that wanted applicant to be happy in work and would pay money back – Applicant declined to set up general ledger for W’s wife – Applicant discovered second allegedly unlawful withdrawal from trust account by W – Following day applicant confronted W about second withdrawal – W told applicant would hand reconciliation of trust account file to external accountants because applicant making “too big a deal of it” – Applicant resolved W unlikely to repay monies allegedly taken unlawfully – Applicant met again with W to discuss trust account and employment agreement (“EA”) – W unhappy applicant discussed trust account with M and declined work for W’s wife – W also unhappy applicant enquired whether transactions personal or business – Applicant claimed employed to do first respondent’s accounts and not that of other entity – Claimed to do job correctly needed to know whether transactions personal or business – Applicant claimed told by W if didn’t like it then knew what to do – Applicant claimed felt no choice but to leave employment – Authority not satisfied respondents breached duty owed to applicant – Found the allegedly improper conduct did not go to any duty owed to applicant – Authority not inclined to view W’s conduct as a sending away or repudiatory – Authority found respondent’s statement to applicant reflected reality of the situation – Authority did not accept applicant could have regarded employment at an end as steps taken by W to placate applicant – No unjustified constructive dismissal – Authority recorded, although disagreed with applicant’s assessment of situation, applicant person of utmost integrity – PENALTY – Applicant claimed respondent failed to provide EA – Authority satisfied Employment Relations Act 2000 did not prescribe penalty for failing to provide “concluded” EA once bargaining ended – Penalty declined – Counterclaim for payment of debt denied – Accounts administrator |
| Result | Applications dismissed (Dismissal ; Penalty and Counterclaim) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s63A |
| Cases Cited | Nichols & Te Awamutu Wines & Spirits (1998) Limited unreported, A Dumbleton, 30 September 2005, AA 388/05 |
| Number of Pages | 9 |
| PDF File Link: | aa 71_08.pdf [pdf 35 KB] |