| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 66/08 |
| Hearing date | 13 May 2008 |
| Determination date | 15 May 2008 |
| Member | D Asher |
| Representation | B Shone ; M O'Brien |
| Location | Wellington |
| Parties | Maguire v Drake NZ Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Applicant resigned to work at competitor - Employment agreement contained clause reserving right to respondent to terminate employment immediately without payment in lieu of notice if employee left to work for competitor - Also contained garden leave provision if employee leaving to work somewhere that created a conflict of interest - Applicant required to leave immediately after giving notice - Did not understand respondent was relying on competitor clause - Respondent unable to contract out of Employment Relations Act 2000 (“ERA”) - Immediate dismissal provision to be applied fairly and reasonably and with due process and substantive justification - No evidence of exceptional circumstances that justified setting aside requirement to provide applicant with information and opportunity to comment before making decision with adverse consequences on continuation of employment - Respondent did not act fairly and reasonably and breached s4(1A) ERA - No discussion about why it relied on immediate termination clause rather than garden leave provision - Applicant did not consent to reduction of notice period - Dismissal unjustified - No evidence to support finding of deliberate conduct by respondent to breach its obligations to applicant - No basis for penalty - Authority also indicated likely costs - Recruitment consultant |
| Result | Application granted ; Reimbursement of lost wages (1 month) ; Compensation for humiliation ($2,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A);ERA s103A |
| Cases Cited | Coca-Cola Amatil (NZ) Ltd v Kaczorowski [1998] 1 ERNZ 264 & [1998] 5 NZELC 95,750;Moffat Appliances Ltd v NZ Clerical Workers Union [1991] 2 ERNZ 437;PBO Ltd (formerly Rush Security Ltd) v Da Cruz [2005] 1 ERNZ 808;Xu and Anor v McIntosh [2004] 2 ERNZ 448 |
| Number of Pages | 8 |
| PDF File Link: | wa 66_08.pdf [pdf 28 KB] |