| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 82/08 |
| Hearing date | 9 Aug 2007 |
| Determination date | 11 March 2008 |
| Member | V Campbell |
| Representation | M Ryan ; D Alderslade |
| Location | Auckland |
| Parties | Potter v Australian Consolidated Press NZ Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicant claimed unjustifiably disadvantaged by transfer of clients from applicant to co-worker, affecting commission – Also claimed unjustifiably disadvantaged by disciplinary process regarding performance – Applicant claimed respondent’s Corporate Sales Manager (“S”) misled applicant by advising received client complaints when in fact no complaints made – Respondent argued business strategy changed commission structure - Authority found clients transferred due to adjustment of client lists – Found this discussed with applicant – Found removal of clients from commission paid employee was action which could lead to disadvantage – However, found removal of clients to allow applicant opportunity to expand business in other areas did not lead to disadvantage – Applicant conceded income increased despite commission restructure – Authority found no unjustified disadvantage regarding reallocation of clients – Authority found S had genuine concerns about applicant’s behaviour – Found when informal approaches did not bring about changes, S implemented formal disciplinary process – Authority did not accept S deceptive or misleading when raised customer complaints with applicant – Found applicant only cast doubt on one of four alleged customer complaints – Found no further disciplinary action taken as result of disciplinary interview with applicant – No unjustified disadvantage - UNJUSTIFIED DISMISSAL – Constructive dismissal – Five days after respondent advised applicant that no further disciplinary action to be taken, applicant resigned – On receipt of resignation, respondent replied to applicant, attempting to arrange meeting – Authority satisfied respondent did not follow course of conduct with intention of coercing applicant to resign – Found S addressed performance issues in fair and reasonable manner – Found equally no evidence to support argument that respondent breached duty to such degree that applicant had no option but to resign – Found applicant reluctant to follow expected processes and reacted negatively when S raised this – No constructive dismissal - ARREARS OF WAGES – Arrears of commission – Respondent argued applicant’s calculations of commission payments included advertisements placed by Australian agents, not applicant – Authority found applicant not entitled to commissions for bookings made by Australian bookers, as specified in updated clause of employment agreement – Found no arrears of commission owing – Found respondent significantly overpaid applicant – Respondent advised would not require applicant repay overpayment - Commercial advertising executive |
| Result | Applications dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers IUOW [1994] 1 ERNZ 168;Bilkey v Imagepac Partners (unreported, 7 October 2007, AC 65/02);Gorrie Fuels (SI) Ltd v Gittoes (unreported, Couch J, 8 November 2007, CC 21/07);Mason v Health Waikato [1998] 1 ERNZ 84;McCosh v National Bank (unreported, 13 September 2004, AC 49/04);NZ Storeworkers IUW v South Pacific Tyres (NZ) Ltd [1990] 2 NZILR 452 |
| Number of Pages | 8 |
| PDF File Link: | aa 82_08.pdf [pdf 44 KB] |