| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 391/08 |
| Hearing date | 17 Oct 2008 |
| Determination date | 13 November 2008 |
| Member | M Urlich |
| Representation | LA Stokes (in person) ; D McConnell |
| Location | Auckland |
| Parties | Stokes v Imex Imports Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE – Applicant promoted from warehouseman to business development manager – Respondent raised performance expectations for new role with applicant – Applicant replied by letter – Respondent asked applicant if unhappy in job – Applicant said not intending to leave but raised concerns about newly appointed sales representative (“S”) – Respondent replied with written summary of discussions – Applicant asked if still employed, respondent replied yes - Applicant issued with written warning dealing with performance issues, stating improvement sought by end of following month and that consequence of failure to improve would be removal of new role – Authority found written employment agreement (“EA”) provided detailed process for issuing non-performance disciplinary warnings – Found process not followed – Found applicant not fairly put on notice that respondent wished to escalate performance issues to disciplinary process – Found no disciplinary meeting convened to put concerns to applicant in disciplinary context, which was significant as warning placed applicant’s employment in jeopardy due to chance of demotion – Found process unjustified – Found threatened sanction also unjustified – Found removal of duties by way of disciplinary sanction went beyond parameters of EA and was unilateral variation of EA – Disadvantage unjustified – Found applicant entitled to modest compensation as was well aware of performance issues - UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed position undermined by treatment by S and behaviour of visiting staff from other office – Day after warning, respondent invited applicant to discuss it – Applicant advised did not feel like coming to work and said would meet with lawyer next day – Applicant, respondent and co-worker met to discuss work circumstances – Parties met individually with legal representation – Parties held heated meeting in which applicant raised voice and co-worker threw tyre across yard – Authority found no evidence respondent behaved inappropriately – Applicant advised respondent resigning with immediate effect and wanted payment of four months’ wages – Authority found resignation not unjustified constructive dismissal – Found applicant rejected opportunity to meet with respondent to discuss warning – Found applicant resigned before warning discussed – No unjustified dismissal – COSTS - Applicant represented self - Applicant entitled to filing fee – Costs reserved - Business development manager |
| Result | Application dismissed (dismissal) ; Application granted (disadvantage) ; Compensation for humiliation etc ($500) ; Disbursements in favour of applicant ($70)(filing fee) ; Costs reserved |
| Main Category | Personal Grievance |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers IUOW [1994] 1 ERNZ 168;Auckland Shop Employees IUOW v Woolworths (NZ) Ltd [1985] ACJ 963 |
| Number of Pages | 4 |
| PDF File Link: | aa 391_08.pdf [pdf 29 KB] |