| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 98/08 |
| Hearing date | 7 May 2008 |
| Determination date | 10 July 2008 |
| Member | P Cheyne |
| Representation | D Burton ; J Bates |
| Location | Christchurch |
| Parties | Thorpe v Beiersdorf Australia Ltd |
| Summary | PARENTAL LEAVE – Applicant claimed agreed with respondent would work part time after returned from parental leave – Respondent argued applicant resigned and no agreement reached for part time position – Applicant requested 14 weeks parental leave commencing on specified date – Applicant provided letter from mid wife confirming expected birth date of child – Respondent’s manager (“C”) confirmed maternity leave for 14 weeks and applicant’s return to work date – Authority found applicant’s intention not to return to work full time but proposed to return part time – Found clear applicant not resigning – C showed applicant’s proposal to senior manager (“W”) – Applicant completed letter stating would not be returning to work full time – Applicant gave birth early and remained in hospital until after date parental leave due to start – Authority found maternity leave should be taken as commencing three days before original date – Authority found controversial whether discussion over part time proposal and whether C agreed to proposal – Applicant claimed C agreed to proposal – Authority found inconsistent evidence provided by C whether told applicant 3 weeks notice required before returned to work – Authority accepted parties agreed applicant would return on later date than previously agreed but no explicit agreement to part time position – C met with applicant and stated not proceeding with part time proposal – C argued applicant’s replacement appointed permanently to full time role – Applicant claimed badgered by C to put intention not to return to work full time in writing – Respondent argued applicant advised intended not to return to work full time after parental leave – Argued applicant not dismissed as chose not to give notice of intention to return to position – Authority found no resignation – Found applicant’s communication to C not seeking return to full time work but wanted to continue employment in part time position – Authority found implicit in respondent’s memo to applicant that position being kept open – Found both parties understood resignation would disentitle parental leave payment – Authority found applicant simply exercised right to parental leave and respondent legally required to keep position open – Authority found C and W responded favourably to part time position proposal, however, evidence fell short of agreement – Authority found respondent’s communications made applicant believe would be agreement based on proposal – Authority found applicant’s lack of written notice of intention to return to work an irregularity under Parental Leave in Employment Protection Act 1987 (“PLEPA”) – Authority found in circumstances irregularity should be remedied as permitted by PLEPA – Found applicant entitled to return to original position as respondent obligated to keep position open – Found problem better analysed as parental leave complaint than dismissal or disadvantage grievance – Authority discussed principles of equitable estoppel in finding if applicant allowed respondent to believe not returning to full time position was because respondent caused applicant to believe part time proposal accepted – Found not unconscionable for applicant to change mind about returning to work as statutory right to return under PLEPA – Authority found respondent failed to recognise applicant’s right to return to original position – Found respondent took or omitted action disadvantaging applicant’s rights and benefits under PLEPA – Parental leave complaint established – REMEDIES – Authority assessed compensation on basis applicant lost remuneration of either part-time or full-time position – Found lost remuneration not attributable to respondent’s breach of PLEPA as likely not returning to full time position – Authority found applicant suffered distress, humiliation, and injured feelings as result of respondent’s breach of PLEPA – $7,500 compensation appropriate – Territory manager |
| Result | Application granted ; Compensation for humiliation etc ($7,500) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | Parental Leave and Employment Protection Act 1987 s2;Parental Leave and Employment Protection Act 1987 s7;Parental Leave and Employment Protection Act 1987 s9;Parental Leave and Employment Protection Act 1987 s36;Parental Leave and Employment Protection Act 1987 s45(4);Parental Leave and Employment Protection Act 1987 s46;Parental Leave and Employment Protection Act 1987 s38;Parental Leave and Employment Protection Act 1987 s56(1)(c);Parental Leave and Employment Protection Act 1987 s65;Parental Leave and Employment Protection Act 1987 s65(c);ERA s160(3) |
| Cases Cited | Hughes v Metropolitan (1987) 2 App Cas 43;National Westminster Finance NZ Ltd v National Bank of NZ Ltd [1996] 1 NZLR 548 (CA) |
| Number of Pages | 13 |
| PDF File Link: | ca 98_08.pdf [pdf 44 KB] |