| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 7/09 |
| Hearing date | 25 Sep 2008 |
| Determination date | 26 January 2009 |
| Member | H Doyle |
| Representation | M Henderson ; M Mulholland |
| Location | Christchurch |
| Parties | Russell v First Security Guard Services Ltd |
| Summary | BREACH OF CONTRACT – Applicant claimed withdrawal of agreement to extend hours of work breached contract – Parties discussed extension of hours – Applicant claimed discussion concluded with agreement for extended hours – Respondent claimed discussion raised possibility of extending hours – Respondent held meeting with applicant to advise extension impractical for business – Authority found no agreement made in first discussion and meeting confirmed that position – No breach of contract - UNJUSTIFIED DISMISSAL - Constructive dismissal – Applicant claimed unjustified allegation breached duty – Respondent was aware applicant’s husband employee of competing company when applicant’s employment commenced – Respondent held meeting to discuss extension of hours and whether applicant working for competitor - Applicant not notified of second issue – Respondent alleged witness “observed” applicant driving for competitor and advised conflict of interest – Applicant explained car husband’s and driving for personal use – Applicant asked for evidence and identification of witness – Respondent claimed explanation accepted, no disciplinary actions taken and no obligation to reveal witness – Applicant claimed allegations led applicant to believe dismissal was inevitable – Applicant resigned citing concerned further allegations would be made - Authority found meeting procedurally unjustified and caused resignation in breach of duty – Found no warning allegations to be put to applicant, no opportunity for representation and insufficient information given for applicant to fully answer allegation – Found allegation caused resignation – Found breach not sufficiently serious for resignation to be reasonably foreseeable – Found respondent accepted explanation and made no suggestion of dismissal – Found meeting distinguishable from cases where unacceptable alternatives or suggestion of resignation put to employee to make resignation foreseeable – Found applicant could have asked whether position in jeopardy – No unjustified dismissal – UNJUSTIFIED DISADVANTAGE - Applicant claimed meeting where allegations were presented caused disadvantage – Authority found although procedurally unjustified, no disciplinary actions taken to cause disadvantage – Applicant claimed failure to disclose identity of witness caused disadvantage - Found respondent accepted explanation and therefore no need to disclose identity – Applicant claimed suspension caused disadvantage – Respondent received complaint regarding applicant “bad mouthing” client and held meeting – Applicant suspended on full pay without investigation – Authority found meeting reasonable however suspension without investigation caused disadvantage – Found respondent’s failure to investigate breached good faith – Found applicant only made comments in passing and substance of comment not amount to serious misconduct – Found EA provided for alternative option to pay applicant balance of notice period and this would have allowed applicant to leave position in dignified manner – Disadvantage unjustified - REMEDIES – No contributory conduct - $2,000 compensation appropriate as steps took to mitigate loss – Applicant entitled to interest on arrears of wages not paid until Authority investigation – BREACH OF CONTRACT – Penalty - Restraint of trade - Counterclaim – Respondent sought penalty for breach of EA relating to restraint of trade – Authority found respondent not proven on balance of probability applicant worked for competitor – Evidence of exchange between applicant and colleague and alleged observation applicant driving competitor’s car insufficient - Counterclaim dismissed – Security guard |
| Result | Application granted (Unjustified disadvantage – Suspension) ; Applications dismissed (Constructive dismissal) (Unjustified disadvantage – Conduct of meetings) (Counterclaim) - (Penalty) ; Compensation for humiliation etc ($2000) ; Interest (5%)(Arrears of Wages) |
| Main Category | Personal Grievance |
| Statutes | ERA s103A |
| Cases Cited | Auckland Shop Employees IUOW v Woolworths (NZ) Ltd [1985] 2 NZLR 372;Xu v McIntosh [2004] 2 ERNZ 448 |
| Number of Pages | 17 |
| PDF File Link: | ca 7_09.pdf [pdf 62 KB] |