| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 384/08 |
| Hearing date | 29 Jul 2008 |
| Determination date | 10 November 2008 |
| Member | A Dumbleton |
| Representation | C Evans ; P Swarbrick |
| Location | Auckland |
| Parties | McGee v The Warehouse Ltd |
| Summary | UNJUSTIFIED DISMISSAL - Constructive dismissal - Disciplinary inquiry into applicant’s handling of refund to customer for refrigerator - Respondent concluded applicant not followed store policy and procedure for handling refunds - Demotion but not dismissal discussed as possible outcome - Applicant resigned - Authority found respondent acted reasonably in commencing investigation into refund - Found acted reasonably in taking investigation to disciplinary inquiry level - Found inquiry conducted properly - Found conclusion applicant breached policies and procedures reasonable in circumstances - Found applicant admitted not following procedures - Found applicant given opportunity to discuss possibility of demotion - Found applicant’s resignation not induced or forced from her by any unlawful or unjustified action of respondent - Found resignation premature as respondent had agreed to mediation - No unjustified dismissal - UNJUSTIFIED DISADVANTAGE - Applicant claimed implementation of performance plan was unjustified disadvantage - Authority found respondent had reasonable basis for implementing performance plan and acted reasonably in suspending it – Found nothing threatening or intimidating about performance plan - Found performance plan did not disadvantage applicant’s employment - No unjustified disadvantage - GOOD FAITH - PENALTY - Applicant claimed respondent failed to act in good faith by not resolving a disciplinary meeting, manager being abusive and intimidating, and unilaterally amending employment agreement by changing work patterns - Applicant sought penalties for breaches - Authority found disciplinary meeting not disciplinary but rather implementation of performance plan - Found performance plan suspended while applicant on medical leave then investigation into refund carried out - Claim dismissed - Authority found complaint about manager’s abusive and intimidating conduct vague and unsupported by evidence - Found on evidence not satisfied grievance raised about conduct or if raised within 90 days - Authority found applicant accepted work patterns needed to change and did not protest or complain at time - Found employment agreement provided hours and duties within position could be varied - Claim dismissed - As no breaches of good faith found claim for penalties failed - RECOVERY OF MONIES - Counterclaim - Respondent paid sum to applicant by mistake after employment relationship ended - Applicant acknowledged payment made and had responsibility to repay it - Applicant ordered to repay sum - Team Leader Service |
| Result | Applications dismissed (unjustified dismissal, unjustified disadvantage, good faith, penalty) ; Application granted (counterclaim)(recovery of monies) ; Recovery of monies ($2,454.53) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s4;ERA s4(1)(a);ERA s4A;ERA s157 |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers IUOW Inc [1994] 1 ERNZ 168 |
| Number of Pages | 10 |
| PDF File Link: | aa 384_08.pdf [pdf 35 KB] |