| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 352/08 |
| Hearing date | 4 Sep 2008 |
| Determination date | 10 October 2008 |
| Member | A Dumbleton |
| Representation | C Patterson ; S Barter |
| Location | Auckland |
| Parties | McCutcheon v Gallagher practicing as Paul Gallagher Legal |
| Summary | UNJUSTIFIED DISMISSAL - Respondent argued employment mutually terminated after applicant declared lost faith in respondent – Applicant sent respondent email stating performance review late, respondent needed more leadership, employment not working for applicant, and thinking about applying for another job – Respondent replied aghast with email and requested meeting – Authority preferred respondent’s evidence of meeting – Applicant stated lost faith in respondent for avoiding salary review and did not feel could work with respondent – Applicant said did not need time to think about it, but did not intend on giving notice – Respondent stated in light of what applicant said, no choice but to give applicant notice – Authority rejected applicant’s evidence respondent produced letter of termination during meeting – Authority found applicant did not resign but was dismissed – Found no usual grounds such as misconduct, poor performance or redundancy argued, however test under s103A Employment Relations Act 2000 met – Found applicant unequivocally renounced employment when declared total loss of faith in respondent and confirmed could no longer work with employer – Found respondent left to formally declare termination by giving notice – Found respondent’s assessment that no realistic alternative was reasonable at time – Found putting up with terminally broken relationship not reasonable alternative, particularly in small firm – Found adequate cooling off period of month’s notice period – Dismissal justified - RAISING PERSONAL GRIEVANCE – Applicant raised grievance by email with respondent 80 days after dismissal – Statement of problem lodged nearly three years later – Respondent did not argue grievance not raised in time so Authority did not determine issue, but expressed opinion – Authority noted email starkly asserted grievance being raised, without details – Authority noted total silence and inactivity for years – Authority noted respondent did not consent to grievance being raised out of time, as simply took actions required by law - Barrister and solicitor |
| Result | Application dismissed ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s103A;ERA s114;ERA Schedule 2 cl10 |
| Cases Cited | Creedy v Commissioner of Police [2006] 1 ERNZ 517;The Board of Trustees of Te Kura Kaupapa Motuhakeo Tawhiuau v Edmonds unreported, 16 May 2008, AC 14/08 |
| Number of Pages | 10 |
| PDF File Link: | aa 352_08.pdf [pdf 34 KB] |