| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 130/08 |
| Hearing date | 12 Jun 2008 - 13 Jun 2008 (2 days) |
| Determination date | 29 August 2008 |
| Member | P Cheyne |
| Representation | P Cranney ; E Hartdegen |
| Location | Christchurch |
| Parties | Coup v MPA Investments Ltd t/a McDonalds Kaiapoi |
| Summary | UNJUSTIFIED DISMISSAL - Constructive dismissal - Applicant and some co-workers joined Unite Union (“union”) - Next month applicant saw memo asking union members to see trainee restaurant manager (“H”) about resigning from union - Dispute as to meaning of memo and in general respondent’s attitude and response to sudden unionisation of workplace - Applicant claimed memo and respondent’s negative disposition to union impacted on employment and how was viewed by management - Applicant worked fewer hours than previously after joining union - Applicant alleged cause was union membership - Respondent claimed reduction due to applicant’s failure to work several shifts and sick leave taken - Incident occurred between applicant and H where H knocked cup of water applicant drinking from into rubbish bin (“water incident”) - Meeting held between applicant, applicant’s union representative (“D”) and respondent to discuss incident and general concerns - Meeting became heated and was ended by D when applicant began crying - Applicant resigned - Applicant claimed respondent exerted undue influence on her in connection with union membership, breached s11 Employment Relations Act 2000 (“ERA”) and resignation was constructive dismissal - Authority found respondent strong employer and applicant vulnerable to its influence - Found relationship between parties such that little required to amount to improper exploitation of inequality - Found memo was intended to induce resignations from union - Found applicant felt improperly and strongly pressured to resign from union - Found interference with applicant’s freedom of choice - Found respondent breached s11 ERA - Found respondent’s actions in response to union membership also breach of good faith - Found insufficient evidence to conclude applicant’s reduction in hours related to union membership - Found H’s conduct in relation to water incident amounted to breach of duty to treat applicant in fair and reasonable manner - Found meeting badly mishandled by respondent and was also breach of duty to treat applicant in fair and reasonable manner - Found combined effect of breaches made applicant’s resignation reasonably foreseeable - Applicant constructively dismissed - Remedies - No contributory conduct - Authority found effect of dismissal on applicant very significant - Found distress felt more keenly because of applicant’s age and vulnerability - Award of $15,000 appropriate - Authority found likely applicant lost some remuneration as result of grievance but difficult to establish what amount as applicant had no guaranteed hours - Found also uncertainty about applicant’s post termination earnings - Authority found given actual loss could be relatively minor and given compensatory award no award for lost remuneration - McDonalds worker |
| Result | Application granted ; Compensation for humiliation etc ($15,000) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4(1A)(1)(b);ERA s7;ERA s11;ERA s110 |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers’ IUOW Inc [1994] 1 ERNZ 168;Auckland etc Shop Employees’ etc IUOW v Woolworths (NZ) Ltd [1985] ACJ 963;Ekotone v Alliance Textiles (NZ) Ltd [1993] 2 ERNZ 783;Paper Reclaim Ltd v Aotearoa International Ltd [2006] 3 NZLR 188;Prins v Tirohanga Group Ltd (formerly Tirohanga Rural Estates Ltd) [2006] ERNZ 321 |
| Number of Pages | 24 |
| PDF File Link: | ca 130_08.pdf [pdf 75 KB] |