| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 302/08 |
| Hearing date | 15 Aug 2008 |
| Determination date | 21 August 2008 |
| Member | A Dumbleton |
| Representation | M McFadden ; P Tremewen |
| Location | Auckland |
| Parties | Cunningham v Action Media Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Constructive dismissal - Applicant resigned giving required notice period of four weeks - Respondent’s director (“M”) made number of remarks related to applicant’s sexuality - Applicant informed partner (“D”) of one incident - D and M had heated phone conversation about incident in which M alleged felt threatened by D - M suspended applicant on pay - Two days later meeting held between applicant, applicant’s mother, and M - Parties reached impasse as to how applicant to complete notice period - Authority accepted applicant’s claim that M announced applicant dismissed and would receive no further pay - M claimed sent email to applicant stating could still work out notice period - Applicant claimed never received email - Authority satisfied applicant never received email - Authority found M’s puerile and boorish behaviour contributed greatly to situation - M’s actions not those of fair and reasonable employer - Meeting followed no formal procedure - Authority found dismissal procedurally and substantively unjustified - No separate determination needed for unjustified disadvantage claim as closely linked in time to dismissal - Authority noted in some circumstances appropriate for employer to suspend where employee’s partner takes action against employer or communicates what employer believes is threat of violence - Remedies - Applicant lost wages as result of dismissal - Entitled to payment for remainder of notice period - Applicant upset and distressed both physically and mentally by dismissal and became depressed - Greatly affected by remarks about sexuality - Award of compensation appropriate - Applicant to be paid mobile phone allowance for notice period - Business Development Manager |
| Result | Application granted ; Reimbursement of lost wages ($3,461.54)(Notice period) ; Loss of benefit ($60)(Mobile phone allowance) ; Compensation for humiliation etc ($3,800) ; Disbursements in favour of applicant ($70)(Filing fee) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Number of Pages | 8 |
| PDF File Link: | aa 302_08.pdf [pdf 30 KB] |