| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 116/08 |
| Hearing date | 12 Mar 2008 |
| Determination date | 12 August 2008 |
| Member | P Montgomery |
| Representation | J Kilkelly ; M Guest |
| Location | Dunedin |
| Parties | Hughes v Living Corporation Ltd |
| Summary | UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed serious breaches of terms of employment agreement (“EA”) led to resignation – Respondent argued alleged breaches were remedied – Parties had discussed possibility of applicant moving into sales role once real estate exams completed, however, no definite timeline established – Applicant claimed when returned from exams found respondent’s directors distant and work atmosphere cold – Applicant claimed not given explanation for sudden change in behaviour and found period distressing – Applicant also claimed discovered derogatory comments in emails – Alleged emails indicated respondent sought to dismiss applicant – Respondent gave applicant draft EA and letter – Applicant found letter offensive because believed framed as ultimatum – Subsequently applicant took sick leave – Respondent argued realised applicant upset by letter and visited applicant at home to reassure could keep job – Respondent accepted letter badly constructed but did not amount to most “heinous of wrongs” – Authority found emails not initial part of plan to dismiss applicant – Found emails between directors understandably expressing concern – Found evidence strongly suggested respondent decided to let matter rest – Authority found reference in letter to “capacity and commitment” at best unprofessional – Found letter ill considered, heavy handed, and arrogant – However, respondent’s actions swift in unreservedly apologising for letter and withdrawing it – Authority found applicant not forced to resign – Found parties did not have insight to pause, evaluate issues calmly, and enlist assistance of independent third party – Found letter not of such serious nature to amount to breach of good faith repudiating EA – No constructive dismissal – UNJUSTIFIED DISADVANTAGE – Authority found applicant unjustifiably disadvantaged by letter, and email questioning “capacity and commitment” – Found respondent’s actions unjustifiably disadvantaged applicant but did not reach threshold to repudiate EA – Remedies – Authority found $4,000 compensation appropriate for disadvantage – ARREARS OF WAGES AND HOLIDAY PAY – Authority found deductions from wages unlawful – Authority restricted payment to holiday pay alone given manifestly unjust to reimburse sick leave for unauthorised absences – Hostess/office administrator |
| Result | Application dismissed (Constructive dismissal) ; Application granted (Disadvantage) ; Arrears of wages and holiday pay (Quantum to be determined) ; Compensation for humiliation etc ($4,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s122;Wages Protection Act 1983 |
| Cases Cited | Auckland Shop Employee' IUOW v Woolworths (New Zealand) Ltd [1985] NZLR 372 (CA);Auckland Electric Power Board v Auckland Provincial District Local Authorities IUOW [1994] 1 ERNZ 368 (CA) |
| Number of Pages | 11 |
| PDF File Link: | ca 116_08.pdf [pdf 45 KB] |