| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 43/08 |
| Hearing date | 29 Nov 2007 |
| Determination date | 17 April 2008 |
| Member | P Montgomery |
| Representation | Q Stratford ; N Francken |
| Location | Dunedin |
| Parties | Rusbatch v Corstorphine House Services Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicant initially claimed constructive dismissal, however, Authority found unjustified disadvantage grievance under s122 Employment Relations Act – Applicant claimed respondent pursued course of conduct with deliberate intention of inducing resignation – Applicant developed regular pattern during two year employment with respondent – Applicant returned from annual leave and advised co-worker trained to do task applicant had previously undertaken – Applicant also working night service under new roster – Applicant argued respondent never discussed changes prior to annual leave – Respondent told applicant roster changed because co-worker carrying out similar tasks found work boring and concluded applicant had similar difficulties – Applicant told respondent did not agree to new changes – Respondent provided applicant memorandum reconfirming warning at previous meeting and stated wanted to find solutions to difficulties – Applicant argued memorandum not true record of previous meeting and did not recall receiving warning – Applicant attended disciplinary meeting where issued final warning and examples of alleged poor performance – Applicant argued told by respondent’s owner (“F”) that should find another job and managers had lost all confidence in applicant – Applicant claimed meeting finished with F stating “we are not firing you yet” – Applicant tendered resignation – Respondent argued applicant’s resignation a surprise as believed only making clear improvement required – Authority found changes to roster considerably high-handed as no discussion with applicant – Found although respondent intended greater flexibility in operations applicant disadvantaged by changes – Authority found not unfair to describe notice of meetings and its events as an ambush – Authority found applicant’s resignation on notice suggested applicant felt able to return and did not support contention of total and immediate repudiation – Found applicant seriously disadvantaged by respondent’s procedure in changing roster and bringing concerns to applicant – Authority found applicant not entitled to repudiate agreement because employment relationship salvageable - Authority found constructive dismissal claim not warranted on facts, however, two unjustified disadvantages established – PENALTY – Authority found not case where respondent’s behaviour towards applicant deliberate – No penalty – Remedies – No reimbursement of lost wages – Found $5,000 compensation appropriate – House keeper |
| Result | Application granted (Disadvantage) ; Application dismissed (Constructive dismissal) ; Compensation for humiliation etc ($5,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s63A(2);ERA s103A;ERA s122 |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authority Officers IUOW Inc [1994] 1 ERNZ 168 |
| Number of Pages | 12 |
| PDF File Link: | ca 43_08.pdf [pdf 49 KB] |