| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 133/08 |
| Hearing date | 26 Feb 2008 |
| Determination date | 08 April 2008 |
| Member | D King |
| Representation | T Oldfield ; C Speksnijder |
| Location | Auckland |
| Parties | Barton v Waikato Security Services Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - BREACH OF CONTRACT - Applicant claimed unjustifiably disadvantaged or in alternative claimed breach of contract - Respondent successful tenderer for provision of security services to customer - Applicant worked for previous contractor - Applicant offered and accepted job with respondent - Respondent received complaint from customer - Customer no longer wanted applicant working at premises - Respondent’s contract with customer allowed customer right to refuse access to premises to respondent’s staff who did not meet customer’s expectations - Respondent met with customer and concluded complaint based on applicant’s conduct, and on earlier concerns customer had when applicant employed with previous contractor - Applicant called to meeting to discuss complaint - As respondent only took over contract six weeks prior recommended applicant provide file from previous employer but file not provided - Customer allowed applicant to return to premises while investigation continued but refused suggestion to attend mediation - Customer agreed if applicant did specific course could remain on premises - At second meeting applicant did not accept needed to change behaviour and refused to attend course - Applicant advised could no longer work at customer’s premises and arrangements would be made for work at alternative site - Applicant told issues not being treated as disciplinary matter - After considerable discussion about alternative work site and hours parties reached agreement as to alternative site but with applicant working fewer hours than previously - Applicant had only wanted shifts in similar pattern as those at customer’s premises due to commitments outside work - Applicant argued individual employment agreement (“IEA”) did not permit respondent to unilaterally adjust applicant’s hours and place of work and respondent required to offer work to applicant at customer’s premises on specific roster pattern - Claimed IEA clear applicant not precluded from agreeing to working on other sites and did contemplate that as a possibility, but only in addition to work at customer’s premises - Authority found IEA did not give applicant absolute right to work solely at customer’s premises - No breach of contract - Authority found disadvantage grievances must depend upon disadvantageous consequences for employee and not merely employee’s subjective dissatisfaction at circumstances - Also disadvantage in employment must relate to on-the-job situation - Any disadvantage applicant suffered by disruption to personal life not on-the-job disadvantage and therefore not disadvantage caused by employer - Found if any disadvantage occurred, not caused by any action by respondent, but caused by action taken by customer in saying would not have applicant on premises - Authority found applicant not disadvantaged in legal sense but merely dissatisfied with circumstances - Found even if applicant disadvantaged, disadvantage had to be unjustifiable - Found respondent investigated matter, sought to obtain information about earlier complaints and sought interim reinstatement and mediation before agreeing to remove applicant from customer’s premises - Further, followed fair procedures and communicated fully with applicant and her representative on alternative work prospects - However, once customer decided no longer wanted applicant on premises respondent had no option but to remove her - Respondent offered applicant as much work as she wanted but for personal reasons applicant refused it - No unjustified disadvantage - Security Officer |
| Result | Applications dismissed (unjustified disadvantage)(breach of contract) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103(1)(b) |
| Cases Cited | Bilkey v Imagepac Partners unreported, Colgan J, 7 Oct 2002, AC 65/02;Charles v Waitakere City Council and Anor unreported, R Arthur, 19 Nov 2007, AA 362/07;Northern Clerical Administrative etc IUOW v South Auckland Taxis Association [1987] NZILR 342 |
| Number of Pages | 12 |
| PDF File Link: | aa 133_08.pdf [pdf 43 KB] |