| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 109/08 |
| Hearing date | 15 Aug 2008 |
| Determination date | 22 August 2008 |
| Member | D Asher |
| Representation | M Brewer ; I Reid, J Gibbs |
| Location | Wellington |
| Parties | Residebri v Tanglo Property Services |
| Summary | UNJUSTIFIED DISMISSAL - Applicant claimed unjustifiably dismissed when respondent pressured him to sign resignation letter he did not understand and then refused to later acknowledge applicant had not resigned - Respondent claimed applicant resigned of own volition and only after counselled on consequences of decision - Applicant provided with interpreter for investigation meeting - Parties disputed amount of applicant’s annual leave entitlement - Labour Inspector confirmed applicant’s entitlement was as respondent advised, and not 7 weeks applicant claimed - Respondent declined applicant’s request for 7 weeks annual leave - Respondent claimed as result of extensive communications between parties about leave request and efforts to accommodate request, respondent left in no doubt applicant intended to resign if application refused - Applicant met with respondent’s manager and signed resignation letter - Less than a week later applicant advised respondent signed resignation letter believing it to relate to leave request and wanted to keep his job and had no intention of resigning - Respondent replied intended to rely on what it saw as genuine resignation - Authority found English clearly applicant’s second language and no reason to doubt applicant’s comprehension of spoken and written English limited - However, Authority found evidence showed not probable applicant did not understand resignation letter, and blindly signed it - Authority satisfied respondent attempted to accommodate applicant’s leave application while meeting operational requirements - Found in contrast, applicant’s position remained unvarying - Authority satisfied applicant made clear would resign if leave not granted - Found no evidence to support claim respondent’s witnesses to meeting where applicant signed resignation letter ‘ganged up’ or colluded against applicant - Authority did not find applicant’s claim thought signing document about leave credible - Authority found not unfair or unreasonable for respondent to decline applicant’s prompt attempts to resile from notice of resignation - Found respondent entitled to rely upon applicant’s considered and unambiguous notice of resignation, once letter signed - Application dismissed - Respondent sought declaration under Legal Services Act 2000 as to what applicant would have been directed to pay for costs if not legally aided in order that respondent could seek to recover amount from Legal Services Agency - Applicant opposed declaration - Authority declined to take matter further other than to observe that, other than for fact applicant legally aided, no reason why costs would not have followed event - Cleaner |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA Part 6A;Holidays Act 2003;Legal Services Act 2000 s40;Legal Services Act 2000 s41 |
| Cases Cited | Boobyer v Good Health Wanganui Ltd unreported, Goddard CJ, 24 Feb 1994, WEC 3/94;Monteith v Hakansson unreported, Shaw J, 18 Mar 2008, WC 5/08;The Principal of Auckland College of Education v Hagg [1997] ERNZ 116;Sky Network Television Ltd v Duncan [1998] 3 ERNZ 917 |
| Number of Pages | 9 |
| PDF File Link: | wa 109_08.pdf [pdf 31 KB] |