| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 19/09 |
| Hearing date | 17 Nov 2008 |
| Determination date | 21 January 2009 |
| Member | J Wilson |
| Representation | B Nalder, M Broadbent ; R Kroon |
| Location | Auckland |
| Parties | Koroi v Excell Corporation Ltd |
| Summary | RECOVERY OF MONIES – Applicant claimed former managers agreed to establish and maintain company carpark – Applicant personally paid costs in expectation of reimbursement – Authority found jurisdiction existed because arrangement within scope of employment agreement (“EA”) arising from employment relationship – Respondent claimed no EA to establish liability for reimbursement – Found no EA or written record to impose liability – No order made – UNJUSTIFIED DISADVANTAGE - Whether respondent’s protected disclosure investigation and subsequent management of applicant’s return to work caused disadvantage – Applicant raised protected disclosure issue in response to disciplinary meeting – Applicant claimed manager (“X”) inappropriately entered into contracts with staff - Disciplinary meeting suspended while disclosure investigations held – Applicant placed on leave with full pay - Investigation resulted in X’s resignation – Respondent concluded disciplinary actions against applicant unwarranted – Applicant returned under new manager (“W”) – Applicant claimed W stated applicant would not “get old job back”; no contact with staff; no access to company vehicles – Meeting with representative (“N”) and operations manager to discuss difficulties – Agreement made for applicant to attempt second return in different position until things “settled down” - Second return unsuccessful – Applicant claimed W instructed applicant to work outside rostered hours; pick up rubbish; no access to transport – Applicant claimed treatment retaliation for whistle blowing – Applicant advised N intended to resign, N held negotiation with respondents regarding exit package - Applicant resigned before conclusion – Authority found disclosure investigations provided “clean slate” for return and no disadvantage caused - Found management of applicant’s return to work deficient – Applicant’s evidence of W’s conduct preferred - Found insufficient safeguards to ensure return was “as smooth as possible” – Applicant’s work located in small community and disclosure investigation subject to rumours despite respondent’s efforts to ensure confidentiality – Found W’s management of return caused disadvantage – Disadvantage unjustified - REMEDIES – 10 percent contributory conduct – Applicant made inappropriate comments to staff - $3,600 compensation appropriate – W’s treatment reduced applicant’s status within community - UNJUSTIFIED DISMISSAL – Constructive dismissal – Applicant claimed W’s treatment coerced resignation – Authority found no coercion but W’s actions may have breached EA – Found respondents wished to restore applicant to previous position – Applicant’s salary maintained during investigation and EA honoured by respondent during return - Found resignation premature – Applicant could have asked for intervention – No dismissal – Lead Hand |
| Result | Application granted (Unjustified disadvantage) ; Applications dismissed (Recovery of monies)(Unjustified dismissal) ; Compensation for humiliation etc ($3,600 reduced to $3,240) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s124;Protected Disclosures Act 2000 |
| Cases Cited | Auckland Electrical Power Board v Auckland Provincial District Local Authorities Officers’ IUOW Inc [1994] 1 ERNZ 168 2;Auckland etc Shop Employees etc IUOW v Woolworths (NZ) Ltd [1985] ACJ 963 |
| Number of Pages | 9 |
| PDF File Link: | aa 19_09.pdf [pdf 33 KB] |